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JURISPRUDENCE 


T.  E.  HOLLAND 


THE 


// 


ELEMENTS  ::^30 

£H3 


JURISPRUDENCE 


BY 


THOMAS   ERSKINE   HOLLAND^   K.C. 

or  uncolm's  inn 

CHICRBUC  PK0FB8S0B  OF  INTEBNATIONAL  LAW  AND  DIFLOMACT 

D.C.L.    AND   FELLOW   OF   ALL   SOULS   COLLEGE,   OXFOBD 

HON.    LL.D.    OF   THE   UKIVEB8ITIES  OF 

BOLOONA,    GLASGOW,    AND   DUBLIN 

F.B.A.,    ASSOCIATE  OF   THE   BOYAL   ACADEMY  OF    BELGIUM 

HON.    PR0FE8S0B   IN  THE   UNIVEESITY  OF    PERUGIA 

HON.    MBHBEB  OF   THE   UNIVERSITT   OF   ST.    PETEBSBUBG  AND  OV 

THE  JURIDICAL   SOCIETY  OF  BERLIN 


TENTH  EDITION 


OXFORD  UNIVERSITY  PRESS 

AMERICAN   BRANCH 

NEW  YOEK :  29-35  WEST  32nd  STEEET 

London:  Henry  Frowdb 

J908 


Amplissimum  luris  Oceanum  ad  paucos  revocare 
fontes  limpidos  rectae  rationis.  —  Leibnitz,  Ep.  ad.  Magi., 
xxvii. 

Das  bedarf  heutzutage  keiner  Bemerkung,  dass  das 
System,  ebensowenig  beim  Recht  wie  bei  jedera  andern 
Gegenstande,  keine  Ordnung  sein  soil,  die  man  in  die 
Sache  hineinbringt,  sondern  eine  solche,  die  man 
her aus holt.  —  Ihering,  Geist  des  R.  R.,  i.  p.  36. 


COPYRIGHT  1906 

BY 

OXFORD  UNIVERSITY   PRESS 

AMERICAN  BRANCH 


PREFACE 

TO   THE  FIRST  EDITI0:N^. 

The  legal  systems  of  the  continent  owe  to  their 
common  derivation  from  the  law  of  Rome,  not  only 
a  uniform  legal  nomenclature,  but  also  a  generally 
accepted  method,  which  at  once  assigns  any  newly 
developed  principle  to  its  proper  place,  and  has  greatly 
facilitated  the  orderly  exposition  of  those  systems  in 
the  form  of  codes. 

In  England,  on  the  other  hand,  legal  nomenclature 
is  a  mosaic  of  many  languages,  and  the  law  itself,  as 
expounded  by  Coke  and  Blackstone,  except  so  far  as 
it  has  been  deduced  with  much  logical  punctiliousness 
from  the  theory  of  feudal  tenure,  is  little  more  than 
a  collection  of  isolated  rules,  strung  together,  if  at 
all,  only  by  some  slender  thread  of  analogy.  The 
practitioner  has  been  content  to  find  his  way  through 
it,  as  best  he  might,  by  the  help  of  the  indices  of 


VI  PREFACE    TO   THE    FIRST    EDITION. 

text-books,  or  by  means  of  '  Abridgments,'  or  so-called 

*  Digests,'  arranged  under  alphabetical  titles. 

It  was  a  step  in  advance  when  it  occurred  to  Mr. 
J.  W.  Smith  to  pubhsh  a  series  of  '  Leading  Cases,' 
selected  almost  at  random,  and  to  group  round  each 
a  collection  of  subordinate  decisions,  in  which  the 
rule  recognised  in  the  princij^al  case  is  deviously 
tracked  in  its  various  applications.  Of  a  somewhat 
similar  nature  is  Dr.  Broom's  '  Selection  of  Legal 
Maxims,'  which  explains  the  workings  in  different 
departments  of  law  of  a  string  of  principles,  such  as 
those  which  are  collected  in  the  title  of  the  Digest 
*de  Regulis  luris.'  It  may  be  remarked  that  the 
principles  to  which  reference  is  made,  alike  in  the 

*  Leading  Cases'  and  in  the  'Maxims,'  are  but  what 
Bacon  would  call '  media  axiomata,'  which  neither  work 
attempts  to  exhibit  in  their  mutual  relations,  or  to 
deduce  from  the  higher  principles  of  which  they  are 
corollaries;  also  that  the  search  for  these  principles  is 
an  enquiry  into  the  ethical  reasons  by  which  English 
law  ought  to  be  moulded,  not  an  analysis  and  classi- 
fication of  legal  categories. 

There  have  been  of  late  years  signs  of  a  change 
in  the  mental  habit  of  English  lawyers.  Distaste  for 
comprehensive  views,  and  indifference  to  foreign  modes 
of  thought,  can  no  longer  be  said  to  be  national 
characteristics.  The  change  is  due  partly  to  a  revival 
of  the  study  of  Roman  law,  partly  to  a  growing  famili- 
arity with  continental  life  and  literature,  partly  to  such 
investigations  as  those  of  Sir  H.  Maine  into  the  origin 
of  legal  ideas,  but  chiefly  to  the  writings  of  Bentham 
and  Austin.    To  the  latter  especially  most  Englishmen 


PREFACE   TO   THE   FIRST   EDITION.  vii 

are  indebted  for  such  ideas  as  they  possess  of  legal 
method.  The  *  Province  of  Jurisprudence  Deter- 
mined,' is  indeed  a  book  which  no  one  can  read 
without  improvement.  It  presents  the  spectacle  of  a 
powerful  and  conscientious  mind  struggling  with  an 
intractable  and  rarely  handled  material,  while  those 
distinctions  upon  which  Austin  after  his  somewhat 
superfluously  careful  manner  bestows  most  labour  are 
put  in  so  clear  a  light  that  they  can  hardly  again  be 
lost  sight  of. 

The  defects  of  the  work  are  even  more  widely 
recognised  than  its  merits.  It  is  avowedly  frag- 
mentary. The  writer  is  apt  to  recur  with  painful 
iteration  to  certain  topics ;  and  he  leaves  large  tracts 
of  his  subject  wholly  unexplored,  while  devoting 
much  space  to  digressions  upon  questions,  such  as  the 
psychology  of  the  will,  codification,  and  utilitarianism, 
which  have  no  necessary  connection  with  his  main 
argument.  It  may  be  asserted,  without  injustice  either 
to  Bentham  or  to  Austin,  that  works  upon  legal  system 
by  Enghsh  writers  have  hitherto  been  singularly  un- 
systematic. 

It  is  long  since  the  author  formed  the  hope  of 
attempting  to  write  a  treatise  upon  legal  ideas  which 
should  at  least  be  free  from  this  particular  fault,  and 
the  objects  which  he  proposed  to  himself  differed  so 
considerably  from  those  aimed  at  in  Mr.  Justice 
Markby's  'Elements  of  Law'  that  the  appearance  of 
that  very  valuable  book  did  not  dissuade  him  from  the 
prosecution  of  his  design.  In  carrying  it  out  he  has 
not  gained  so  much  assistance  as  he  expected  from  the 
legal  literature  of  the  continent.     He  soon  discovered 


viii  PREFACE  TO  THE  FIRST  EDITION. 

not  only  that  the  name  of  Austin  was  unknown  in 
Germany,  but  that  very  little  had  been  written  in  that 
coimtry  with  a  direct  bearing  upon  analytical  jurispru- 
dence. The  latter  fact  is  not  so  surprising  as  it  may 
appear,  if  it  be  remembered  that  the  continental  jurists 
find  in  Roman  law  a  ready-made  terminology  and  a 
typical  method,  upon  which  they  are  little  inclined  to 
innovate.  From  treatises  upon  *  Naturrecht,'  which 
may  be  described  as  *  Jurisprudence  in  the  air,'  he  has 
derived  next  to  nothing ;  and  works  upon  '  Encyclo- 
padie '  and  *  Methodologie  '  are  generally  too  brief,  and 
too  much  infected  with  a  'priori  concej^tions,  to  have 
been  consulted  with  much  profit.  More  help  has  been 
found,  where  it  might  not  at  first  be  looked  for,  in  the 
numerous  works,  usually  entitled '  Pandekten,'  in  which 
the  Germans  have  set  forth  the  Roman  law  as  it  has 
been  modified  with  a  view  to  modern  convenience.  Fore- 
most among  these  must  be  mentioned  von  Savigny's 
*  System  des  heutigen  Romischen  Rechts.' 

Still  less  has  been  derived  from  the  other  modern 
literatures;  and  after  a  general  survey  of  the  subject 
the  author  set  to  work  to  think  it  out  for  himself, 
resolving  to  traverse  the  whole  of  it,  and  to  hold  a 
straight  course  through  it,  turning  neither  to  the  right 
hand  nor  to  the  left  into  any  digression  however  tempt- 
ing. He  now  offers  the  result  of  his  labours,  which  has 
been  much  delayed  by  other  and  more  pressing  engage- 
ments, to  the  indulgence  of  those  who  best  know  the 
extent  and  difficulty  of  the  topic  of  which  he  has 
attempted  to  give  a  complete  and  consistent  view. 

T.  E.  H. 

Oxford,  March  20,  1880. 


PREFACE    TO   THE   THIRD   EDITION.  IX 


PREFACE  TO  THE  SECOND  EDITION. 

This  edition  has  been  carefully  revised,  and  contains  a 
good  deal  of  new  matter.  The  author  has  to  thank  several 
of  his  reviewers,  whose  articles  form  in  themselves  valuable 
contributions  to  the  literature  of  the  subject,  especially 
Mr.  A.  V.  Dicey  and  Mr.  F.  Pollock.  He  is  also  indebted  to 
previously  unknown  correspondents,  such  as  Mr.  R.  Foster 
of  the  New  York  Bar,  who  have  been  good  enough  to  favour 
him  with  private  communications  upon  points  suggested  by 
their  reading  of  the  book.  He  takes  this  opportunity  of 
explaining,  with  particular  reference  to  an  able  article  by 
Mr.  A.  Tilley,  that  the  method  which  he  has  followed,  as  best 
exhibiting  the  scientific  order  of  legal  ideas,  is  not,  in  his 
opinion,  necessarily  that  which  would  be  found  most  con- 
venient for  the  arrangement  of  a  Code.  He  has  elsewhere  \^ 
pointed  out  that  logical  division  should  be  to  the  codifier  what 
anatomy  is  to  the  painter.  Without  obtruding  itself  upon 
the  surface,  it  should  underlie  and  determine  the  main  features 
of  every  systematic  exposition  of  law. 

T.  E.  H. 

Oxford,  August  25,  1882. 

PREFACE  TO  THE  THIRD  EDITION. 

In  preparing  this  edition  for  the  press,  the  author  has 
throughout  taken  account  of  the  development  both  of  positive 
law  and  of  legal  theory,  in  this  and  other  countries,  during 
the  last  three  years,  so  far  as  he  has  been  able  to  follow  it. 
He  has  also  worked  out  in  greater  detail  than  before,  though 
it  is  hoped  without  detriment  to  the  general  proportions  of 
the  book,  the  difficult  topics  dealt  with  in  Chapter  Vlll,  and 
what  he  ventures  to  think  the  important  question,  raised  in 
Chapter  XII,  as  to  the  necessity  of  agreement  in  contract. 

Upon  many  points  he  has  found  help  in  the  elaborate 
reports  upon  foreign  law  which  some  of  the  governments  of 
the  continent  are  careful  to  have  drawn  up  before  proposing 
serious  legislative  changes.  No  one  can  consult  these  reports 
without  Avishing  that  something  of  the  kind  were  more  usual 
in  this  country,  where  a  legal  principle  which  has  elsewhere 
long  been  discussed  from  every  point  of  view,  is  not  un- 
frequently  treated  in  Parliament,  and  even  by  the  Courts,  as 
a  novelty. 

T.  E.  H. 

Oxford,  January  31,  1886. 


PREFACE   TO   THE   EIGHTH   EDITION. 


PREFACE  TO  THE  FOURTH  EDITION. 

In  revising  this  edition,  care  has  been  taken  to  introduce 
as  much  illustration  as  possible  from  recent  English  cases,  in 
which  one  seems  to  remark  a  growing  tendency  towards 
scientific  generalization.  The  author  has  reason  to  be  more 
than  ever  convinced  of  the  truth  of  what  ma}'^  perhaps  be 
described  as  the  'objective'  theory  of  Contract,  maintained  in 
Chapter  XII.  He  has  seen  with  pleasure  that  the  method 
of  this  work  has  been  followed  'as  the  most  logical  and  most 
exact,'  by  Mr.  Stimson  in  compiling  his  American  Statute 
Law:  an  Analytical  and  Compared  Digest  of  the  Constitutions 
and  civil  public  Statutes  of  all  the  States  and  Territories, 
relating  to  persons  and  property;  and  that  much  of  its 
terminology  has  been  adopted  in  the  able  treatise  of  Professor 
Terry,  of  Tokio,  Some  Leading  Principles  of  Anglo-American 
Law,  expounded  with  a  view  to  its  Arrangement  and 
Codification. 


Oxford,  December  i,  1887. 


T.  E.  H. 


PREFACE  TO  THE  EIGHTH  EDITION. 

No  pains  have  been  spared  to  make  this  edition  an  im- 
provement upon  its  predecessors.  The  Prefaces  to  the  editions 
of  1890,  1893,  and  1895  have  not  been  reprinted,  but  it  may 
be  worth  while  to  repeat  the  statement,  made  in  1893,  that  'in 
compliance  with  a  wish  expressed  in  many  quarters  especially 
by  Oriental  students,  the  author  has  transl«4ed  the  German 
and  Greek  definitions  which  occur  in  the  earlier  chapters, 
though  well  aware  how  much  of  the  meaning  of  the  former 
at  any  rate  must  perish  in  the  process.'  Many  references 
have  now  been  made  to  the  new  Civil  Code  for  Germany, 
which  became  law  last  month.  This  great  work,  the  result  of 
twenty  years  of  well-directed  labour,  differs  materially  from 
the  draft  Code,  to  which  allusions  will  be  found  in  the  sixth 
and  seventh  editions.  Few  more  interesting  tasks  could  be 
undertaken  than  a  comparison  in  detail  of  this  finished 
product  of  Teutonic  legal  science  with  the  Code  Civil,  which 
has  so  profoundly  affected  the  legislation  of  all  the  Latin 
Races. 

T.  E.  H. 

Oxford,  September  15,  1896. 


PREFACE   TO   THE   TENTH    EDITION.  xi 


PREFACE  TO  THE  TENTH  EDITION. 

The  preparation  of  this  edition  has  been  delayed  by  more 
pressing  engagements  of  the  author,  which  have  obliged  him 
to  resort  to  the  temporary  expedient  of  a  reprint  of  the 
previous  edition.  He  has  now  carefully  revised  the  work, 
adding  much  new  matter  suggested,  in  more  than  usual 
abundance,  by  recent  decisions  and  discussions.  While 
rejoicing  that  increased  attention  is  now  devoted,  on  both 
sides  of  the  Atlantic,  to  the  subject  of  legal  method,  he  cannot 
help  thinking  that  the  order  of  the  German  Civil  Code,  which 
has  been  unavoidably  followed  in  Mr.  Jenks's  interesting 
attempt  to  exhibit  English  law  also  in  the  form  of  a  Code, 
in  so  far  as  it  treats  of  Obligations  before  Rights  in  rem,  is 
less  convenient,  as  well  as  less  scientific,  than  that  derived 
from  the  Roman  institutional  writers. 

It  may  be  desirable  to  repeat  that  this  book  has  been 
copyright  in  the  United  States  since  1896,  and  that  an 
unauthorized  edition  issued,  in  the  same  year,  at  St.  Paul, 
Minnesota,  was  taken,  not,  as  is  stated  in  the  'Publishers' 
Preface',  from  a  (then  non-existent)  ninth  English  edition, 
but,  as  indeed  appears  from  the  title-page,  from  the  seventh 
edition,  published  in  1895. 

T.  E.  H. 

OxFOBD,  May  30,  1906. 


CONTENTS. 

PART  I. 

LA"W     AND     RIGHTS. 

CHAPTER  I.  PAGE 

Jurisprudence  ••...,,,, 

CHAPTER  II. 

Law 

•        •  14 

CHAPTER  III. 
Laws  as  Rules  op  Human  Action 24 

CHAPTER  IV. 

PosiTiYE  Law    ... 

.        ,  41 

CHAPTER  V. 
The  Sources  of  Law        •..,,,,  c-j 


XIV  CONTENTS. 

CHAPTER  VI.  PAGE 

The  Object  of  Law 75 

CHAPTER  VII. 
Rights 78 

CHAPTER  VIII. 
Analysis  of  a  Right 87 

CHAPTER  IX. 
The  Leading  Classifications  of  Rights        .        .        .        120 

CHAPTER  X. 
Rights  at  Rest  and  in  Motion 143 


PART  II. 

PRIVATE    LA"W. 

CHAPTER  XL 
Antecedent  Rights  *  in  rem  ' 160 

CHAPTER  XII. 
Antecedent  Rights  'in  personam'         .        .        .        .        234 

CHAPTER  XIII. 
Remedial  Rights 3*2 


CONTENTS, 


XV 


Abnormal  Rights 


Adjective  Law 


CHAPTER  XIV. 


CHAPTER  XV. 


PAGE 
328 

347 


PART  m. 

PUBLIC    LAW. 

CHAPTER  XVL 

The  Nature  of  the  Topic 

Constitutional  Law 

Administrative  Law 

Criminal  Law  . 

Criminal  Procedure 

The  Law  of  the  State  as  a  Person 

Civil  Procedure  by  and  against  the  State 


355 
359 
3^3 
367 
375 
376 
377 


PART  IV. 

INTERNATIONAL     LATV. 

CHAPTER  XVIL 

The  Nature  of  the  Topic 380 

International  Persons '     .  384 

Substantive  Law 385 

Adjective  Law,  Belligerency 391 

n  ■,,       Neutrality 393 


XVI  CONTENTS. 

PART  V. 

THE    APPLICATION    OP    LAW. 
CHAPTER  XVIII. 

PAGE 

The  Natube  of  the  Topic      ...  .        .        30^ 

The  Application  of  Private  Law         ....        398 

n  »  Public  Law  ....  .412 

n  »  International  Law      .        .        .        419 


Index 


421 


TABLE  OF  CASES 


ENGLISH,  SCOTCH,  COLONIAL,  AND  AMERICAN. 


Abemethy  v.  Hutchinson, 
page  205. 

Abrath  v.  N.  E.  Ry.  Co.,  182. 

Adams  v.  Lindsell,  262. 

Adamson  v.  Jarvis,  232. 

Alabaster  v.  Harness,  372. 

Aldred's  Case,  218. 

Alexander  v.  Perry,  275. 

Allen  V.  Flood,  163,  180. 

Altonv.  Midland  Ry .  Co. ,  247. 

Angus  V.  Dalton,  217. 

Anon.,  232. 

Appleby  v.  Franklin,  327. 

Arkwright  v.  Newbold,  230. 

Armory  v.  Delamirie,  195. 

Armstrong  v.  Lane,  and 
Yorks.  Ry.  Co.,  148. 

Ashby  V.  White,  144,  148, 
245. 

Ashford  v.  Thornton,  348. 

Atkinson  v.  Newcastle  Wa- 
ter-works Co.,  246. 


Attorney-General  v.  Panter, 

105. 
Attorney-General  v.  Trustees 

of  British  Museum,  207. 
Austin  V.  Gt.  Western  Ry. 

Co.,  247. 

B. 

Bailey  v.  De  Crespigny,  289. 
Bainbridge  v.  Firmstone,  277. 
Ball,  ex  parte,  327. 
Banner,  ex  parte,  113. 
Barnes  v.  Toye,  341. 
Baxter  v.  Portsmouth,  244. 
Beake  v.  Tyrell,  418. 
Beamish  v.  Beamish,  66. 
Behn  v.  Burness,  301. 
Berdell  v.  Parkhurst,  342. 
Bernina,  the,  148. 
Bethell  v.  Hilliard,  171. 
Bidleson  v.  Whytel,  251. 
Bilbie  v.  Lumley,  106. 
Bird  V.  Brown,  266. 
Blackburn  v.  Vigors,  267. 


XVlll 


TABLE  OF  CASES. 


Blain,  ex  parte,  404, 

Blyth  V.  Birmingham  Water- 
works Co.,  109. 

Boileau  v.  Rutlin,  326. 

Bolton  V.  Lambert,  266. 

Bonham's  Case,  36. 

Bonomi  v.  Backhouse,  144, 

Boston  Ice  Co.  v.  Potter, 
258. 

Boulton  V.  Jones,  258. 

Bowen  v.  Hall,  176. 

Bower  v.  Peate,  323. 

Bright  V,  Boyd,  243. 

Brinkley  v.  Attorney-Gen- 
eral, 171. 

Brisbane  v,  Dacres,  105, 

Broderip  v.  Salomon,  335, 

Brogden  v.  Metr.  Ry.  Co., 
262,  265, 

Bromage  v,  Genning,  252, 

Bromage  v,  Prosser,  177, 

Brown  v,  Brandt,  246. 

Brown  v.  Kendall,  109, 

Brunsden  v,  Humphrey,  163, 
316, 

Buckley  v.  Gross,  98,  195, 

Burgess  v.  Burgess,  204. 

Burrows  v,  March  Gas  Co., 
147. 

Butler  and  Baker's  Case, 
248, 

Butterly  v.  Vyse,  233, 

Byrne  v.  Van  Tienhoven,  262, 

C. 

Caird  v.  Sime,  see  Sime  v. 
Caird,  200. 

Caledonian  Railway  v.  Walk- 
er's Trustees,  66. 

Carlill  V.  Carbolic  Smoke-ball 
Co.,  255,  260,  261,  269. 


Carr  v.  L,  and  N.  W.  Ry.  Co., 

256, 
Carteret,  Lord,  v.   Paschal, 

304, 
Chamberlain  v,  Williamson, 

324. 
Chanter  v.  Hopkins,  301. 
Chasemore  v.  Richards,  201. 
Chatham    Furnace    Co.    v. 

Moffatt,  231. 
Chisholm  v,  Georgia,  46. 
C.  S.  Co-op,  Socy,  V,  General 

Steam  Nav,  Co,,  307. 
Clark  V,  Chambers,  147. 
Clayton  v,  Clark,  309. 
Cobbett  V.  Grey,  165, 
Cochrane  v.  Moore,  249. 
Coggs  V,  Bernard,  68,  277. 
Collen  V,  Wright,  231, 
Collins  V,  Evans,  232,  233, 
Colls  V.  Home  and  Colonial 

Stores,  217, 
Colman  v.  Eastern  Counties 

Ry.,  338. 
Colonial  Bank  v,  Whinney, 

202,  305, 
Colonial  Secretary  v,  David- 
son, 275. 
Commonwealth  v.  Hamilton 

Manuf.  Co.,  365. 
Commonwealth    v.     Pierce, 

109, 
Cook  V,  Fountain,  71. 
Cooke  V,  Gill,  316. 
Cooper  V.  Phibbs,  15. 
Cork  V.  Blossom,  145. 
Comford   v,  Carlton  Bank 

337. 
Cornish  v.  Abington,  256. 
Cotterell  v  Jones,  183. 
Couch  v.  Steel,  246. 
Couturier  v.  Hastie,  258. 


TABLE  OF   CASES. 


XIX 


Cowan  V.  Milboum,  62. 
Cowan  V.  O'Connor,  262. 
Cowley  V.  Cowley,  203. 
Cox  V.  Midland  Ry.,  266. 
Cundy  v.  Lindsay,  255. 
Curran  v.  Arkansas,  336. 
Currie  v.  Misa,  277. 
Cuthbert  v.  Cumming,  58. 
Cutting  case,  the,  416. 

D. 

Danubian  Sugar  Factories  v. 
Inl.  Rev.  Commission- 
ers, 206. 

Darrell  v.  Tibbitts,  299. 

Dartmouth  College  v.  Wood- 
ward, 248,  363. 

Dashwood  v.  Magniac,  64, 
221. 

Davey  v.  L.  and  S.  W.  Ry., 
148. 

Davies  v.  Davies,  296. 

Davis  V.  Duke  of  Marl- 
borough, 71. 

Day  V.  Savage,  36. 

Debenham  v.  Mellon,  267. 

De  Cairos  Bros.  v.  Caspar,  275. 

Dickenson  v.  Dodds,  261. 

Dietrich  v.  Northampton,  92. 

Dockrell  v.  Dougall,  203. 

Donald  v.  Suckling,  225. 

Donaldson  v.  Beckett,  205. 

Drew  V.  Nunn,  257. 

Drummond  v.  Drummond, 
64. 

Dublin,  &c.  Ry.  v.  Slattery, 
148. 

Du  Boulay  v.  Du  Boulay ,  203. 

Dulieu  v.  White,  167. ' 

Dunlop  V.  Higgins,  262. 

Dunmore  v.  Alexander,  262. 


E. 


East  and  S.  Africa  Tel.  Co.  v. 

Cape  Town  Tramways 

Co.,  145. 
Eastland  v.  Burchell,  267. 
Eaton  V.  Jacques,  224. 
Edelstein  v.  Schuler,  59. 
E.  I.  Ry.  Co.  v.  K.  Muckerjee, 
•       290. 
Ellis  V.  London  and  S.  W. 

Ry.,  147. 
Evans  v.  Edmonds,  230. 


F. 

Falke  v.   Scottish  Imperial 

Insurance  Co.,  245. 
Farrow  v.  Wilson,  307. 
Farwell  v.  Boston  and  Wore. 

Ry.  Co.,  150. 
Feltham  v.  England,  150. 
Ferguson  v.  W.  Union    Teh 

Co.,  167. 
Ffoulkes  V.  Metr.  Distr.  Ry. 

Co.,  247. 
Finlay  v.  Chimey,  324. 
Fitz-John      v.     Mackinder, 

182. 
Fleckner    v.    U.    S.    Bank, 

266. 
Fletcher   v.    Rylands,    144, 

166. 
Foakes  v.  Beer,  309. 
Foot  v.  Card,  168. 
Foote's  Case,  62,  374. 
Fores  v.  Wilson,  175. 
Foster  v.  Mackinnon,  254. 
Freeman  v.  Cooke,  256. 
Frost  V.  Knight,  311. 


h» 


XX 


TABLE   OF   CASES. 


G. 

Gee  V.  Pritchard,  71. 

Gelpeke  v.  Dubuque,  64. 

George  v.  Skivington,  167. 

Gerhard  v.  Bates,  146. 

Gibbons  v.  Budd,  291. 

Giblan  v.  National  Labour- 
ers' Union,  181. 

Gibson  v.  E.  I.  Co.,  337. 

Gilchrist,  ex  parte,  202. 

Gilmour  v.  Supple,  210. 

Glamorganshire  Coal  Co.  v. 
S.  Wales  Miners'  Feder- 
ation, 181. 

Good  V.  Cheeseman,  309. 
f    Goodwin  v.  Robarts,  59. 

Gordon  v.  Harper,  196. 

Gore  V.  Gibson,  244. 

Gray  v.  Brown,  173. 

Grey  v.  Ellison,  259. 

Grierson  v.  Eyre,  71. 

Grill  V.  Gen.  Iron  Screw  Col- 
liery Co.,  109,  291. 


H. 

Hall  V.  Barrows,  204. 
Hallett's  Estate,  in  re,  72. 
Hammersmith    Ry.    Co.    v. 

Brand,  201. 
Hanfstaengl  v.  Baines,  204. 
Hanfstaengl  v.  Empire  Co., 

204. 
Harris  v.  Brisco,  182. 
Harrison  v.  D.  of  Rutland, 

181. 
Hart  V.  Frame,  110. 
Hawthorne,  in  re,  404. 
Haynes  v.  Haynes,  250. 
Heaven  v.  Pender,  111. 


Hebditch  v.  Mcllwaine,  179. 

Henderson  v.  Folkestone  Wa- 
terworks Co.,  67. 

Henthome  v.  Fraser,  262. 

Hill  V.  Tupper,  222. 

Hoadley  v.  Macleane,  278. 

Hobbs  V.  Glasgow  Ry.,  148. 

Hochster  v.  Delatour,  311. 

Holman  v.  Johnson,  36. 

Holmes  v.  Mather,  145. 

Honey  wood,  in  the  goods  of, 
177. 

Hopwood  V.  Thorn,  178. 

Horah  v.  Horah,  170. 

Household  Fire  and  Carriage 
Co.  V.  Grant,  262. 

Hyde  v.  Hyde,  171. 

Hyde  v.  Wrench,  260. 


I. 


Imperial  Loan  Co.  v.  Stone. 
343. 


J. 


Jacobson  v.  Norton,  275. 
Janson  v,  Driefontein  Cons. 

Mines  Co.,  268. 
Jeffreys  v.  Boosey,  64,  203, 

205. 
Johnson  v.  Pie,  341. 
Johnstone  v.  Marks,  341. 
Jolly  V.  Rees,  266. 
Jones  V.  Broadhurst,  307. 

K. 

Keeble  v.  Hickeringill,  180. 
Kelly  V.  Metr.  District  Ry. 

Co.,  247. 
Kendall  v.  Hamilton,  325. 


TABLE   OF   CASES. 


XXI 


Keppel  V.  Bailey,  217. 
King  V.  Hoare,  325. 
King  V.  Lake,  178. 
Kneesy  v.  Exner,  168. 
Knight  V.  Gibbs,  147. 
Knox  V.  Mackinnon,  109. 
Krell  V.  Henry,  307. 
Kujek  V.  Goldman,  232. 


Lamond  v.  Richard,  246. 
Lamphier  v.  Phipos,  110. 
Lampleigh    v.     Braithwait, 

245,  277. 
Lansdowne    v.    Lansdo^vne, 

104. 
Latless  v.  Holmes,  105. 
Lawrence  v.  Fox,  250. 
Laythoarp  v.  Byrant,  277. 
Leask  v.  Scott,  66. 
Lee  V.  Bude,  36. 
Lee  V.  Griffin,  289. 
Lemaistre  v.  Davis,  217. 
Lewis  V.  Holmes,  167. 
Lipton  V.  Buchanan,  275. 
London  v.  Wood,  36. 
London    School    Board    v. 

Wright,  248. 
London  Street  Tramways  Co. 

V.  London  County  Coun- 
cil, 66. 
Longmeid  v.  Holliday,  167, 

232. 
LordAdvocatev.  Young,  192. 
Lord  V.  Lord  &  Lambert,  172. 
Lord  V.  Price,  196. 
Louisa  van  den  Berg,  re,  275. 
Lumley  v.  Allday,  178. 
Lumley  v.  Gye,  176,  180. 
Lynch  v.  Knight,  147,  167, 

168. 
Lynch  v.  Nurdin,  147. 


M. 

McCoun  V.  R.  R.  Co.,  248. 
Macmillan  &  Co.   v.  Dent, 

204. 
Malan  v.  Secretan,  275. 
Mangau  v.  Atherton,  147. 
Marais,  ex  parte,  366. 
Markham  v.  Cobbe,  327. 
Martin,  re,  333. 
Mason  v.  Tussaud,  178. 
Max  Morris,  the,  148. 
Maxim-Nordenfeldt  Gun  Co. 

v.  Nordenfeldt,  296. 
May  V.  Burdett,  144,  166. 
Mayor  of  Bradford  v.  Pickles, 

201. 
Mehrhoff  v.  Mehrhofif,  168. 
Melhuish  v.  Milton,  113. 
Metropolitan  Bank  v.  Pooley, 

372. 
Metropolitan  Saloon  Co.  v. 

Hawkins,  331. 
Meynell  v.  Surtees,  260. 
Midland  Ry.  Co.   v.  Smith, 

327. 
Mignonette       Case,       the, 

370. 
Milan,  the,  148. 
Millar  v.  Taylor,  64. 
Mills  V.  Armstrong,  148. 
Milner  v.  Milner,  157. 
Mitchell     V.     R.    R.     Co., 

167. 
Mogul  Steamship  Co.  v.  Mc- 
Gregor, 180. 
Moore  v.  Robinson,  194. 
Moss  v.  Moss,  170. 
Motteram  v.  E.  Counties  Ry. 

Co.,  105. 
Moulton  v.  Camroux,  343. 
Mounsey  v.  Ismay,  215. 


XXll 


TABLE   OF   CASES. 


Mtembu  v.  Webster,  275. 
Munn  V.  Illinois,  201. 
Murray  v.  S.  C.  Ry.  Co.,  150. 

N. 

New  York  Central  Ry.  Co.  v. 

Lockwood,  110. 
Newbigging  v.  Adam,  264. 
Niboyet  v.  Niboyet,  91,  239. 
Nichols  V.  Bastard,  196. 
Nichols  V.  Pitman,  205. 
Nitro-glycerine    Case,    the, 

106. 

O. 

Oakey  v.  Dalton,  204. 
O'Donnell  v.  Clinton,  254. 
Oliver  v.  Bank  of  England, 

231. 
Oliver  v.  Oliver,  204. 
Orme  v.  Orme,  240. 
Ormerod  v.  Todmorden  Mill 

Co.,  203. 
Osborne  v.  Gillett,  175. 

P. 

Paget  V.  Gee,  70. 
Paradine  v.  Jane,  307. 
Parlement  Beige,  the,  318. 
Pasley  v.  Freeman,  230,  232. 
Paxton's  Case,  37. 
Payne  v.  Cave,  260. 
Pearks,  &c.,  Lim.  v.  Ward, 

369. 
Peek  V.  Derry,  231,  232. 
Peek  V.  Gumey,  230. 
People  V.  Phyfe,  365. 
Pickard  v.  Sears,  256. 
Pierce  v.  Pierce,  67. 
Pillans  V.  Van  Mierup,  276. 
Pinnel's  Case,  309. 


Planche  v.  Colburn,  311. 
Pope  V.  Curll,  204. 
Power  V.  Banks,  340. 
Poyser  v.  Minors,  347. 
Price  V.  Moulton,  325. 
Priestley  v.  Fowler,  150. 
Prince  Albert  v.  Strange,  183. 
Printing  Co.  v.  Sampson,  268. 

Q. 

Quartz  Hill  Gold  Mining  Co. 

V.  Eyre,  182. 
Queensland  Co.,  in  re,  410. 
Quinn  v.  Leathern,  66,  181, 

320. 

R. 

Radley  v.  L.  &  N.  W.  Ry. 

Co.,  147. 
Raffles  V.  Wichelhaus,  258. 
Ramsay's  and  Foote's  Case, 

374. 
Ramsgate  Hotel  Co.  v.  Mon- 

tefiore,  260. 
Randall  v.  Trimen,  231. 
Ranelagh  v.  Hayes,  300. 
Rangeley  v.  Midland  Ry.  Co., 

218. 
Rann  v.  Hughes,  276. 
Ratcliffe  v.  Evans,  322,  324. 
Read  v.  Gt.  Eastern  Ry.  Co., 

167. 
Reddel  v.  Dobree,  187. 
Redfem  v.  Redfem,  374. 
Redgrave  v.  Hurd,  264. 
R.  V.  Bailey,  105. 
R.  V.  Dudley,  370. 
R.  V.  E.  Archipelago  Co.,  337. 
R.  V.  E.  Counties  Ry.  Co.,  150. 
R.  V.  Ensor,  373. 
R.  V.  Essex,  57. 
R.  V.  Foote,  62,  374. 


TABLE  OF  CASES. 


XXUl 


R.  V.  Holbrook,  373. 

R.  V,  Hutchinson,  418. 

R.  V.  Jackson,  240. 

R.  V.  Jones,  374. 

R.  V.  Mayor  of  London,  337, 

370. 
R.  V.  Millis,  286. 
R.  V.  Peltier,  371. 
R.  V.  Ramsay,  62,  374. 
R.  V.  Roche,'418. 
R.  V.  Thurston,  105. 
R.  V.  Topham,  374. 
R.  V.  Windsor,  378. 
Reynolds  v.  Reynolds,  170. 
Rhodes,  in  re,  244. 
Riche  V.  Ashbury  Carriage 

Co.,  339. 
Risdale  v.  Clifton,  66. 
Robinson       v.       Davidson, 

307. 
Robinson  v.  Mollett,  63. 
Rogers  v.  Spence,  197. 
Roodt  V.  Wallach,  275. 
Rotherham,  re,  250. 
Rousillon  V.  Rousillon,  296. 

S. 

Sachs  V.  Henderson,  247. 
Salomon  v.  Salomon  &  Co., 

335. 
Satanita,  the,  250. 
Savile  v.  Jardine,  178. 
Schibsby  v.  Westenholz,  38. 
Schultz  V.  Schultz,  342. 
Scott  V.  Littledale,  256. 
Scott  V.  Sebright,  169. 
Scott  V.  Shepherd,  146. 
Scott  V.  Thieme,  275. 
Scribner  v.  Kelley,  166. 
Shaym  v.  Evening  Post  Co., 

336. 


Shrewsbury,  Earl  of,  v.  N. 

Staff.  Ry.  Co.,  339. 
Siggers  v.  Evans,  248. 
Sime  V.  Caird,  205. 
Smith  V.  Baker,  149,  321. 
Smith  V.  Freyler,  300. 
Smith  V.  Hughes,  256. 
Smith  V.  Milles,  196. 
Smith  V.  Smith,  170. 
South  Yorks.  Ry.  Co.  v.  Gt. 

N.  Ry.  Co.,  339. 
Standing  v.  Bowring,  248. 
Stanhope  v.   Stanhope  and 

Adye,  324. 
Stanley  v.  Powell,  86,  106. 
Stewart  v.  Casey,  277. 
Stokes  V.  Stokes,  37. 
Sutton's  Hospital,  Case  of, 

331. 
Swift  V.  Gifford,  188. 
Swift  V.  Kelley,  170. 
Swift  V.  Tyson,  64. 
Synge  v.  Synge,  311. 


Taff  Vale  Ry.  Co.  v.  Amalg. 
Soc.  of  Ry.  Servants, 
333. 

Takuji  Yamashita,  re,  344. 

Tayloe  v.  Merchts.  Fire  Ins. 
'  Co.,  262. 

Taylor  v.  Caldwell,  307. 

Taylor  v.  Hawkins,  179. 

Taylor  v.  Manchester,  Shef- 
field, and  Line.  Ry.  Co., 
247. 

Taylor  v.  Root,  251. 

Temperton  v.  Russell,  176, 
180. 

Thomas  v.  Quartermain, 
321. 


Xxiv 


TABLE   OF  CASES. 


Thomas  v.  Sorrell,  221. 
Thomas  v.  Winchester,  167. 
Thompson  v.  Alexander,  333. 
Thompson  v.  Leach,  248. 
Thorley  v.  Lord  Kerry,  178. 
Thoroughgood  V.  Bryan,  148. 
Tilt  V.  People,  365. 
Tobin  V.  The  Queen,  378. 
Tradesmen's  Ben.  Soc.  v.  Du 

Preez,  275. 
Tuberville  v.  Savage,  165. 
Turner  v.  Stallibrass,  247. 
Turner  v.  Webster,  243,  257. 
Tweddle  v.  Atkinson,  250. 


U. 

Union  Bank  of  Australia,  ex 
parte,  404. 


V. 

Vaughan  v.  Menlove,  108. 

Vaughan  v.  Taff  Vale  Ry. 
Co.,  201. 

Vaughan  v.  Weldon,  316. 

Vegelahn  v.  Guntner,  181. 

Vicars  v.  Wilcox,  147. 

Victorian  Railways  Commis- 
sioners V.  Coultas,  167. 

Villar  V.  Gilbey,  92. 


W. 

Wakelin  v.  L.  and  S.  W.  Ry., 
148. 

Walker  v.  Cronin,  176. 

Walker  v.  Gt  N.  Ry.  of  Ire- 
land, 92. 


Wallis  V.  Day,  291. 
Walter  v.  Lane,  205. 
Walworth  v.  Holt,  70. 
Ward  V.  Turner,  187. 
Ward  V.  Weeks,  147. 
Warwick  v.  Queen's  College, 

215. 
Watkin  v.  Hall,  177. 
Watkins,  ex  parte,  257. 
Webster  v.  Hudson  Railway, 

148. 
Weir  V.  Bell,  232. 
Weldon  v.  Weldon,  240. 
Wellock     V.      Constantine. 

371. 
Wells  V.  Abrahams,  327. 
Wennhak  v.  Morgan,  177. 
Western  Union  Tel.  Co.  v. 

Wofford,  265. 
Westlake  v.  Westlake,  168. 
West    Rand    Central    Gold 

Co.  V.  The  King,  378, 

382. 
Whitbourne     v.     Williams, 

173. 
Wilkinson  v.  Downton,  167. 
Williams     v.     Birmingham 

Battery  Company,  321. 
Williams  V.' E.  I.  Co.,' 232. 
Williams  v.  Jones,  165. 
Williamson  v.  Allison,  232. 
Williamson  v.  Freer,  179. 
Willis  V.  Baddeley,  63. 
Willoughby  v.   Willoughby, 

67. 
Wills  V.  Murry,  303. 
Wilson  V.  Glossop,  244. 
Wilson  V.  Horn,  169. 
Windmill    Local    Board    of 

Health  v.  Vint,  327. 
Wing  V.  Angrave,  351. 
Winkfield,  the,  195. 


TABLE  OF  CASES. 


XXV 


Woodruff  V.  Woodruff,  67. 
Wyman  v.  Leavitt,  167. 


X. 

Xenos  V.  Wickham,  272. 


Y. 

Young  V.  Hichens,  188. 

Z. 

ZoUverein,  the,  414. 
Zouche  V.  Parsons,  341. 


THE 
ELEMENTS  OF  JURISPRUDENCE. 


CHAPTER    I. 


JURISPRUDENCE. 

The  present  treatise    is  an  attempt  to  set  forth  and  The  need 
explain  those  comparatively  few  and  simple  ideas  which  ^f  l^^^ 
underlie  the  infinite  variety  of  legal  rules. 

The  search  for  these  ideas  is  not  merely  a  matter  of 
scientific  curiosity.  The  ever  -  renewed  complexity  of 
human  relations  calls  for  an  increasing  complexity  of  legal 
detail,  till  a  merely  empirical  knowledge  of  law  becomes 
impossible.  The  evil  has  been  partially  remedied  by  the 
formation  of  Codes,  in  which  legislators,  more  or  less 
imbued  with  legal  principles,  have  grouped  the  legal  chaos 
under  genera  and  species.  But  an  uncodified  system  of 
law  can  be  mastered  only  by  the  student  whose  scientific 
equipment  enables  him  to  cut  a  path  for  himself  through 
the  tangled  growth  of  enactment  and  precedent,  and  so 
to  codify  for  his  OAvn  purposes.  In  this  department  of 
knowledge,  as  in  others,  the  difficulty  of  the  subject  is 
due  less   to    the  multiplicity  of    its  details   than   to  the 

HOLLAND  B 


2  JURISPRUDENCE. 

CHAP.  I.  absence  of  general  principles  under  which  those  details 
may  be  grouped.  In  other  words,  while  legal  science 
is  capable  of  being  intelligently  learnt,  isolated  legal  facts 
are  capable  only  of  being  committed  to  memory. 

Its  name.  For  the  beginnings  of  the  science  which  reduces  legal 

phenomena  to  order  and  coherence  the  world  is  indebted 
to  the  Romans.  It  is  als6  from  their  language  that  the 
science  derives  its  name. 

'  lurisprudentia, '  in  its  original  use,  was  merely  one 
among  several  phrases  signifying  a  knowledge  of  the  law, 
just  as  'rei  militaris  prudentia'  signified  a  knowledge 
of  the  conduct  of  warfare  \  The  sort  of  knowledge 
which  the  term  denoted  may  be  gathered  from  Cicero's 
description  of  a  jurisconsult  as  one  who  must  be  '  skilled 
in  the  laws,  and  in  the  usages  current  among  private 
citizens,  and  in  giving  opinions  and  bringing  actions  and 
guiding  his  clients  aright^.' 

From  this  thoroughly  practical  conception  of  legal 
knowledge  the  Roman  jurists  subsequently  rose  to  a  far 
higher  one.  The  rudiments  of  this  may  already  be  traced 
in  the  writings  of  Cicero,  who  enumerates  the  civil  law, 
along  with  astronomy,  geometry,  and  dialectic,  among  the 


*  '  Habebat  enim  magnam  prudentiam,  turn  iuris  civilis  turn  rei  mili- 
taris.' Nep.  Cim.  2.  The  following  terms  are  used  synonymously  with 
'iuris  prudentia':  'legum  prudentia,'  Cic.  Rep.  ii.  36;  'legum  scientia,' 
Inst.  Prooem.  3;  'legitima  scientia,'  ib.  2;  'iuris  notitia,'  Tac.  Orat.  31; 
'cognitio  iuris,'  Cic.  de  Orat.  i.  44;  'iuris  scientia,'  ib.  55,  Tac.  u.  s., 
Pompon.  Dig.  i.  2.  2.  40;  'civilis  scientia,'  Cic.  de  Orat.  i.  43;  'iuris 
peritia,'  Ulp.  Dig.  i.  i.  i.  Knowledge  of  a  particular  department  of  law 
is  described  by  such  phrases  as  '  iuris  civilis  cognitio,'  Cic.  de  Orat.  i.  59; 
'iuris  publici  prudentia,'  ib.  60. 

*  Cic.  de  Orat.  i.  48.  The  same  persons  who  were  called  '  iurisconsulti' 
or  'iure  periti,'  'iuris  peritos  .  .  .  qui  pragmatici  vocantur,'  ib.  59, 
were  also  described  as  'prudentes  in  iure  civili,'  Cic.  Amic.  2;  more 
briefly  as  'prudentes,'  Gai.  i.  7.  Cf.  'in  libris  iuris  auctorum  et  in 
alia  antiqua  prudentia.'  Cod.  xviii.  2.  1.  The  phrase  'iuris  prudens ' 
is  employed  by  Pomf)onius  (Dig.  xxxviii.  15.2).  '  Legum  prudens '  occurs 
in  Ennius  (Gell.  xii.  4)  and  'imprudens  iuris'  in  lust.  Inst.  iv.  2. 


MEANING    OF   THE   TERM.  3 

arts  which  have  to  do  with  the  pursuit  of  truth  \  He 
tells  us  that  the  study  of  law  must  be  derived  from  the 
depths  of  philosophy,  and  that,  by  an  examination  of 
the  human  mind  and  of  human  society,  principles  may 
be  discovered  in  comparison  with  which  the  rules  of 
positive  law  are  of  but  trivial  importance  ^ 

Thus  the  way  was  prepared  for  Ulpian's  well-known 
definition  of  jurisprudence  as  'the  knowledge  of  things 
human  and  divine,  the  science  of  the  just  and  unjust'.' 
Jurisprudence  was  conceived  of  as  a  branch  of  philosophy ; 
and  such  an  elevation  of  the  idea  of  legal  study  was 
naturally  accompanied  by  a  corresponding  elevation  of  its 
professors.  Ulpian  claims  for  himself  and  his  learned 
brethren  that  they  are  '  the  priests  of  Justice,  engaged  in 
the  pursuit  of  a  philosophy  that  is  truly  such  and  no 
counterfeit  V  The  Romans  had,  in  fact,  attained  by  this 
time  to  the  idea  of  a  science  of  those  legal  principles  which 
exist  independently  of  the  institutions  of  any  particular 
country.  No  technical  term  could  be  borrowed  from  the 
Greek  language  to  denote  what  was  of  purely  indigenous 
growth  \  and  thus  it  happened  that  a  phrase  which  at  first 
had  been  but  one  among  several,  signifying,  in  a  homely 
and  quite  unscientific  sense,  a  'knowledge  of  law,'  came 
at  length,  by  an  accident  of  Latin  philology,  to  exptess 
the  new  idea  of  a  legal  science. 

The  nations  of  modern   Europe  are  fortunately  in  the 

»  Cic.  de  Off.  i.  6. 

'  Cic.  de  Leg.  i.  5.     Cf.  Plin.  Ep.  i.  10. 

'  '  lurisprudentia  est  divinarum  atque  humanarum  rerum  notitia,  iusti 
atque  iniusti  scientia.'  Dig.  i.  i.  10.  This  is  nearly  a  translation  of  the 
Stoic  definition  of  ffo(pla  as  being  Ofluv  rt  Kot  avGpunivwv  ^itio-t^jutj  (Plut. 
Plac.  Phil.  i.  pr.;  cf.  Cic.  de  Off.  i.  43),  modified  by  the  addition  of 
a  clause  specifying  the  particular  kind  of  wisdom  intended.  The  first 
clause  of  Ulpian's  definition  has  been,  wnith  little  reason,  thought  by 
some  to  have  reference  to  the  distinction  between  ius  sacrum  and  the 
other  branches  of  law;  see  Gliick,  Pandekten,  i.  p.  198. 

*  Dig.  i.  I.  I.  I. 

®  lurisprudentia  is  represented  in  the  Basilika,  ii.  i.  i,  and  in  Har- 
menopulus,  Prompt,  i.  i.  18,  by  ffwpia  v6nov. 

B2 


4  JURISPRUDENCE. 

CHAP.  I.  habit  of  calling  tfie  various  branches  of  knowledge  by  non- 
vernacular  names,  adopted  by  common  consent  from  the 
classical  languages;  so  that  a  science  is  generally  known 
by  the  same  Greek  or  Latin  term  wherever  Western  civil- 
isation extends.  It  is  therefore  natural  and  convenient 
that  most  of  the  European  nations  should  express  the  idea 
of  a  science  of  law  by  a  word  which  they  have  borrowed 
from  the  language  of  those  by  whom  the  idea  was  first 
conceived  \ 
Improper  But  the   term  is  unfortunately  also  borrowed   by  the 

term.  modern  languages  to  express  other  ideas,  which  might  be 

much  better  expressed  in  the  vernacular.  Thus,  upon  the 
analogy  of  certain  loose  expressions  of  the  Roman  writers, 
who  sometimes  use  '  iurisprudentia '  to  denote  a  current 
view  of  the  law^  there  has  sprung  up  in  French  the  use  of 
such  phrases  as  'jurisprudence  constante,'  'jurisprudence 
des  arrets  de  la  Cour  de  Cassation';  in  the  sense  of  the 
view  which  the  courts  are  in  the  habit  of  taking  of  certain 
questions '. 

Still  less  justifiable  is  the  use,  so  frequent  both  in  French 
and  in  EngUsh,  of  '  Jurisprudence '  as  the  equivalent  of 
'Law.'  The  imposing  quadrisyllable  is  constantly  intro- 
duced into  a  phrase  on  grounds  of  euphony  alone.  Thus 
we  have  books  upon  '  Equity  Jurisprudence,'  which  are 
nothing  more  nor  less  than  treatises  upon  the  law 
administered  by  Courts  of  Equity;  and  we  hear  of  the 
Jurisprudence  of  France  or  Russia,  when  nothing  else 
is  meant  than  the  law  which  is  in  force  in  those  countries 
respectively  \   This  sacrifice  of  sense  to  sound  might  more 


'  Even  the  Germans,  who  have  vernacular  names  for  so  many  of  the 
sciences,  recognise  '  Jurisprudenz'  as  well  as  '  Rechtswissenschaft.' 

^  'Media  iuris  prudentia,'  lust.  Inst.  iii.  2.  3. 

'  'La  maniSre  dont  un  tribunal  juge  habituellement  telle  ou  telle 
question.'    Diet,  de  I'Acad^mie. 

*  'A  practical  Treatise  of  Architectural  Jurisprudence,'  by  James 
Elmes,  was  published  in  1827.  Perhaps  the  least  pardonable  application 
of  the  term  takes  place  when  a  treatise  upon  such  medical  facts  as  may 


A   SCIENCE.  5 

readily  be  pardoned,  had  it  not  misled  serious  and  accurate     chap.  i. 
thinkers. 

Bentham,  for  instance,  divides  Jurisprudence  into  'ex- 
pository,' which  ascertains  what  the  law  is,  and  'censorial,' 
which  ascertains  what  it  ought  to  be\  Now  an  exposi- 
tion of  existing  law  is  obviously  quite  another  thing  from 
a  science  of  law,  and  criticisms  upon  the  law  with  a  view 
to  its  amendment  are  the  subject,  not  of  Jurisprudence, 
but,  as  Bentham  himself  states  in  the  next  paragraph, 
of  the  art  of  Legislation.  Bentham  carries  the  confusion 
further  by  proceeding  to  subdivide  expository  Juris- 
prudence into  'authoritative'  and  ' unauthoritative V  By 
'authoritative  expository  jurisprudence'  he  means  nothing 
more  nor  less  than  law  emanating  from  the  legislative 
power;  under  'unauthoritative'  he  would  apparently  in- 
clude both  text-books  upon  the  laws  of  any  one  country, 
or,  as  he  would  say,  upon  'local  jurisprudence,'  and  works 
upon  law  without  special  reference  to  any  one  country,  or, 
to  use  his  own  phrase,  upon  'universal  jurisprudence.' 
If  we  are  right  in  considering  that  'censorial  juris- It  is  the 
prudence'  should  be  called  'the  art  of  legislation,'  that g^jgucg 
'authoritative  jurisprudence'  is  nothing  more  nor  less 
than  a  body  of  law,  and  that  'unauthoritative  local  juris- 
prudence' is  mere  commentary,  it  is  obvious  that  what 
Bentham  makes  the  sub-department  of  'unauthoritative 
universal  jurisprudence '  is  alone  entitled  to  bear  the  name 
of  the  science ;  and  should  bear  the  name  simply,  without 
the  addition  of  epithets  intended  to  distinguish  it  from 
departments  of  the  subject  which  are  non-existent.  'Juris- 
prudence' ought  therefore  to  be  used,  and  used  without 
any  qualifying  epithet,  as  the  name  of  a  science. 

incidentally  become  important  in  legal  proceedings  is  described  as  a  book 
upon  '  Medical  Jurisprudence '  (first,  apparently,  by  Dr.  Samuel  Farr, 
London,  1788).  Such  a  work  is  more  properly  described  as  dealing 
with'  Forensic  Medicine,'  or 'Medecine  legale.'  There  is  a  Chair  of 'Dental 
Jurisprudence'  in  the  Dental  Scliool  of  Chicago. 

'  Works,  i.  p.  148.  »  lb. 


6  JURISPRUDENCE. 

CHAP,  I.         We  have  next  to  inquire  what  kind  of  a  science  it  is ; 

'^l"^     .        and  we  shall  find  that  it  is  a  formal,  or  analytical,  as 
science  is 

a  formal  opposed  to  a  material  one;  that  is  to  say,  that  it  deals 
rather  with  the  various  relations  which  are  regulated  by 
legal  rules  than  with  the  rules  themselves  which  regulate 
those  relations. 

This  was  not  indeed  the  whole  scope  of  the  science  as 
conceived  of  by  its  founders*.  There  floated  also  always 
before  the  eyes  of  the  later  Roman  jurists  a  vision  of 
a  'ius  naturale';  a  universal  code,  from  which  all  parti- 
cular systems  are  derived,  or  to  which  they  all  tend,  at 
least,  to  approximate :  a  set  of  rules,  the  matter,  or 
contents,  of  which  is  of  universal  application. 

But  in  point  of  fact,  and  in  the  very  pursuit  of  this 
material  unity,  they  were  led  to  elaborate  a  system  of 
formal  unity;  to  catalogue  the  topics  Avith  which  every 
system  of  law  has  to  deal,  however  each  may  differ  from 
the  rest  in  its  mode  of  dealing  with  them.  They  per- 
formed for  Law  a  service  similar  to  that  which  was 
rendered  to  Language  by  the  Greeks  of  Alexandria,  when 
by  observing  and  tabulating  the  parts  of  speech,  the 
inflections,  moods  and  syntax,  they  invented  a  Grammar, 
under  the  formulae  of  which  all  the  phenomena  of  any 
language  find  appropriate  places  ^   Whether  the  possessive 

■  Although  we  find  in  Cicero  the  clearest  possible  description  of  an 
analytical  science  of  law.  '  Sunt  notanda  genera  et  ad  certum  numerum 
paucitatemque  revocanda  ...  si  autem  aut  milii  facere  licuerit  quod  iam 
diu  cogito,  aut  alius  quispiam  aut  me  impedito  occuparit,  aut  mortuo 
effecerit,  ut  primum  omne ius  civile  in  genera  digerat, quae  perpauca  sunt, 
deinde  eorum  generum  quasi  quaedam  membra  dispertiat,  tum  propriam 
cuiusque  vim  definitione  declaret,  perfectam  artem  iuris  civilis  habebitis, 
magis  magnam  atque  uberem  quam  difficilem  atque  obscuram.'  De 
Orat.  i.  42.  Cicero's  Treatise  De  lure  Civili  in  Artem  redigendo,  men- 
tioned by  A.  Gellius,  i.  22,  is  unfortunately  lost. 

'  SeeMaxMuller,  Science  of  Language,  edit.  3,  p.  90.  On  the '  Technik 
des  Rechts,'  or  'Chemie  des  Rechts,'  as  a  '  formale  juristische  Logik,'  see 
Ihering,  Geist  des  R.  R.  ii.  Th.  ii.  p.  335,  and  the  idea  seems  to  liave  been 
worked  out  by  M.  E.  Roguin,  in  La  regie  de  Droit,  (?tude  do  science  juri- 
dique  pure,  Lausanne,  1889.  Cf.  J.  S.  Mill:  '  The  facts  of  which  law  takes 


A   FORMAL   SCIENCE.  7 

case  of  a  noun  substantive  is  expressed  by  a  specific 
modification  of  its  termination,  or  by  prefixing  to  it 
a  specific  preposition,  is  a  question  of  the  matter  of 
language ;  but  that  the  possessive  idea,  however  variously 
expressed,  yet  finds  some  expression  or  other  in  every 
family  of  human  speech,  is  a  proposition  which  relates  to 
linguistic  form. 

The  assertion  that  Jurisprudence  is  a  formal  science  may 
perhaps  be  made  clearer  by  an  example.  If  any  indi- 
vidual should  accumulate  a  knowledge  of  every  European 
system  of  law,  holding  each  apart  from  the  rest  in  the 
chambers  of  his  mind,  his  achievement  would  be  best  de- 
scribed as  an  accurate  acquaintance  with  the  legal  systems 
of  Europe.  If  each  of  these  systems  were  entirely  unlike 
the  rest,  except  when  laws  had  been  transferred  in  the 
course  of  history  from  one  to  the  other,  such  a  distin- 
guished jurist  could  do  no  more  than  endeavour  to  hold 
fast,  and  to  avoid  confusing,  the  heterogeneous  information 
of  which  he  had  become  possessed.  Suppose  however,  as  is 
the  case,  that  the  laws  of  every  country  contain  a  common 
element;  that  they  have  been  constructed  in  order  to 
effect  similar  objects,  and  involve  the  assumption  of  similar 
moral  phenomena  as  everywhere  existing;  then  such  a 
person  might  proceed  to  frame  out  of  his  accumulated 
materials  a  scheme  of  the  purposes,  methods,  and  ideas 
common  to  every  system  of  law.  Such  a  scheme  would 
be  a  formal  science  of  law;  presenting  many  analogies 
to  Grammar,  the  science  of  those  ideas  of  relation  which, 
in  greater  or  less  perfection,  and  often  in  the  most 
dissimilar  ways,  are  expressed  in  all  the  languages  of 
mankind. 

To  each  of  these  formal  sciences  there  ministers  a  science 
Avhich    supplies  it   with   materials.     Just    as    similarities 

cognisance,  though  far  from  being  identical  in  all  civilised  societies,  are 
sufficiently  analogous  to  enable  them  to  be  arranged  in  the  same  cadres.' 
Dissertations,  iii.  p.  212. 


8  JURISPRUDENCE. 

CHAP.  I.  and  differences  in  the  growth  of  different  languages  are 
collected  and  arranged  by  Comparative  Philology,  and 
the  facts  thus  collected  are  the  foundation  of  abstract 
Grammar  ^ ;  so  Comparative  Law  collects  and  tabulates  the 
legal  institutions  of  various  countries,  and  from  the  results 
thus  prepared,  the  abstract  science  of  Jurisprudence  is 
enabled  to  set  forth  an  orderly  view  of  the  ideas  and 
methods  which  have  been  variously  realised  in  actual 
systems.  It  is,  for  instance,  the  oflBce  of  Comparative  Law 
to  ascertain  what  have  been  at  different  tunes  and  places 
the  periods  of  prescription,  or  the  requisites  of  a  good 
marriage.  It  is  for  Jurisprudence  to  elucidate  the  meaning 
of  prescription,  in  its  relation  to  ownership  and  to  actions ; 
or  to  explain  the  legal  aspect  of  marriage,  and  its  con- 
nection with  property  and  the  family.  We  are  not  indeed 
to  suppose  that  Jurisprudence  is  impossible  imless  it  is 
preceded  by  Comparative  Law.  A  system  of  Juris- 
prudence might  conceivably  be  constructed  from  the 
observation  of  one  system  of  law  only,  at  one  epoch  of 
its  growth.  Such,  however,  has  not  been  in  point  of  fact 
the  mode  of  its  evolution,  which  must  have  been  extremely 
tardy  but  for  the  possibility  of  separating  the  essential 
elements  of  the  science  from  its  historical  accidents,  by 
comparing  together  laws  enforced  in  the  same  country  at 
different  epochs,  and  indigenous  laws  with  the  differing, 
though  resembling,  laws  of  foreigners. 

Jurisprudence  is  therefore  not  the  material  science  of 
those  portions  of  the  law  which  various  nations  have  in 

*  It  is  of  course  true,  as  is  pointed  out  by  Sir  F.  Pollock  in  commenting 
upon  this  passage  (Essays  in  Jurisprudence  and  Ethics,  p.  4),  that,  as 
a  matter  of  fact,  abstract  grammar  is  not  taught  separately,  but '  is  given 
by  implication  in  every  systematic  grammar  of  a  particular  language.* 
This  is  probably  a  subject  of  regret  to  most  persons  who,  after  mastering 
one  language,  find  many  pages  in  the  grammars  of  every  other  language 
devoted  to  a  reiteration  of  the  now  familiar  distinctions  between  a  sub- 
stantive and  an  adjective,  a  present  and  a  future  tense,  direct  and  oblique 
narration. 


NOT    pIVISIBLE.  9 

common*,  but    the  formal    science   of   those   relations   of     chap.  i. 
mankind  which  are  generally  recognised  as  having  legal 
consequences  ^. 

In  the  next  place,  it  must  be  sufficient  at  present  merely  It  is  a 
to  state,  without  further  explanation,  that  Jurisprudence  is  positive 
not  a  science  of  legal  relations  a  priori^  as  they  might  have  ^^^' 
been,  or  should  have  been,  but  is  abstracted   a  posteriori 
from   such  relations    as    have  been    clothed   with  a  legal 
character  in  actual  systems,  that  is  to  say  from  law  which 
has  actually  been  imposed,  or  positive  law.  It  follows  that  and  is 
Jurisprudence  is  a  progressive  science.  Its  generalisations  pro^es-^ 
must  keep  pace  with  the  movement  of  systems  of  actual  ^i^^- 
law.  Its  broader  distinctions,  corresponding  to  deep-seated 
human   characteristics,  will  no  doubt   be  permanent,  but, 
as  time    goes  on,  new  distinctions    must    be    constantly 
developed,  with  a  view  to  the  co-ordination  of  the  ever- 
increasing  variety  of  legal  phenomena '. 


*  A  subject  which,  under  the  description  of  the  'ius  gentium,'  largely 
occupied  the  attention  of  the  Roman  jurists. 

'  Prof.  Grueber,  in  his  review  of  this  work,  prefers  to  describe  the 
object  of  Jurisprudence  as  being  '  die  Gesammtheit  der  auf  die  verschie- 
denen  Verhaltnisse  anwendbaren  Rechtsvorschriften,'  Krit.Vierteljahres- 
schrift  fiir  Rechtswissenschaft,  1884,  p.  180.  But  see  Windscheid, 
Pand.  i.  §  13,  n.  2.  A  new,  and  questionable,  function  is  attributed  to 
'  the  science  of  Law  '  by  Mr.  Justice  Holmes,  when  he  describes  it  as 
being  not  merely  a  theological  working  out  of  dogma,  or  a  logical  develop- 
ment, as  of  mathematics,  or  a  study  of  an  anthropological  document. 
'  An  even  more  important  part,'  he  says,  '  consists  in  the  establishment 
of  its  postulates  from  within,  upon  accurately  measured  social  desires, 
instead  of  tradition.'    Harvard  Law  Review,  xii.  p.  452. 

^  So  Lord  Hale : '  It  cannot  be  supposed  that  humane  laws  can  be  wholly 
exempt  from  the  common  fate  of  humane  things.  Parliaments  have  taken 
off  and  abridged  many  of  the  titles  about  which  the  law  was  concerned: 
usage  and  disusage  have  antiquated  others,  .  .  .  and  it  shall  not  be 
altogether  impertinent  to  give  some  instances  herein  of  several  great 
titles  in  the  Law,  which  upon  those  occasions  are  at  this  day  in  a  great 
measure  antiquated,  and  some  that  are  much  abridged  and  reduced  into 
a  very  narrow  compass  and  use'  (he  mentions,  inter  alia,  tenures  by 
knight-service,  descents  to  take  away  entry,  attumment),  'and  as  time 
and  experience  and  use,  and  some  Acts  of  Parliament,  have  abridged 
some  and  antiquated  other  titles,  so  they  have  substituted  or  enlarged 


lO 


JURISPRUDENCE. 


CHAP.  I. 

Is  it  divis- 
ible into 
'  general  * 
and  '  par- 
ticular'? 


We  have  lastly  to  consider  whether  the  science  is 
rightly  divided  into  several  species,  and  especially  to 
inquire  into  the  justness  of  the  distinction  drawn  between 
*  general '  and  '  particular  '  Jurisprudence.  '  Particular 
Jurisprudence,'  says  Austin,  *  is  the  science  of  any  actual 
system  of  law  or  of  any  portion  of  it.  The  only  practical 
Jurisprudence  is  particular.  .  .  .  The  proper  subject  of 
general,  or  universal.  Jurisprudence  is  a  description  of 
such  subjects  and  ends  of  laws  as  are  common  to  aU 
systems,  and  of  those  resemblances  between  different 
systems  which  are  bottomed  in  the  common  nature  of 
man,  or  correspond  to  the  resembling  points  in  these 
several  portions '.' 

Now  '  particular '  Jurisprudence  may  mean  either  of 
two  things.  It  may  mean:  a  science  derived  from  an 
observation  of  the  laws  of  one  country  only.  If  so,  the 
particularity  attaches,  not  to  the  science  itself,  which  is 
the  same  science  whencesoever  derived,  but  to  the  source 
whence  the  materials  for  it  are  gained.  A  science  of  Law 
might  undoubtedly  be  constructed  from  a  knowledge  of 
the  law  of  England  alone,  as  a  science  of  Geology  might 
be,  and  in  great  part  was,  constructed  from  an  observation 
of  the  strata  in  England  only:  yet  as  there  is  no  par- 
ticular science  of  Geology,  so  neither  is  there  a  particular 
science  of  Law.  For  a  science  is  a  system  of  generaUsa- 
tions  which,  though  they  may  be  derived  from  observations 
extending  over  a  limited  area,  will  nevertheless  hold  good 
everywhere;  assuming  the  object-matter  of  the  science  to 


other  titles:  as  for  instance,  action  upon  the  case,  devises,  ejectione  firmae, 
election,  and  divers  others.'  Preface  to  Rolle's  Abridgment,  1668.  Cf. 
the  interesting  remarks  of  Sir  Henry  Maine  on  the  probability  that 
a  general  adoption  of  a  system  of  Registration  of  title  would  render 
comparatively  unimportant  such  topics  as  Possession,  Bonitarian  owTier- 
ship,  and  Usucapio;  '  although  these  have  always  been  recognised  as 
belonging  to  what  may  be  called  the  osseous  structure  of  Jurisprudence.' 
Early  Law  and  Custom,  p.  360. 

'  Lectures  on  Jurisprudence,  vol.  iii.  p.  356.  Cf.  Bentham,  Works,  i. 
p.  149. 


NOT   DIVISIBLE.  II 

possess  everyAvhere  the  same  characteristics.  Principles  chap. 
of  Geology  elaborated  from  the  observation  of  England 
alone  hold  good  all  over  the  globe,  in  so  far  as  the  same 
substances  and  forces  are  everywhere  present ;  and  the 
principles  of  Jurisprudence,  if  arrived  at  entirely  from 
EngUsh  data,  would  be  true  if  applied  to  the  particular 
laws  of  any  other  community  of  human  beings ;  assuming 
them  to  resemble  in  essentials  the  human  beings  who 
inhabit  England.  The  wider  the  field  of  observation,  the 
greater,  of  course,  will  be  the  chance  of  the  principles  of 
a  science  being  rightly  and  completely  enunciated ;  but,  so 
far  as  they  are  scientific  truths  at  all,  they  are  always 
general  and  of  universal  appUcation.  The  phrase  may 
however,  and  probably  does,  mean :  an  acquaintance  with 
the  laws  of  a  particular  people ;  and  the  impropriety  of 
describing  such  merely  empirical  and  practical  knowledge 
by  a  term  which  should  be  used  only  as  the  name  of 
a  science  has  been  already  pointed  out.  In  either  sense 
therefore  the  term  is  a  misnomer ;  and  it  follows  that,  the 
existence  of  a  '  particular  Jurisprudence '  not  being  ad- 
mitted, the  employment  of  the  opposed  term  'general 
Jurisprudence'  becomes  unnecessary.  Both  expressions 
should  be  discarded,  and  the  science  should  be  treated  as 
incapable  of  being  divided  into  these  two  branches. 

A  distinction  may  also  be  suggested  between  '  historical '  or  into 
and  '  philosophical '  Jurisprudence.     It  may  be  said  that  p^j  >  ^^^ 
the  unity  which  makes  Jurisprudence  a  science  exists  only  P||!^^/*,"^ 
in  idea;  that  while  it  has  a  side  upon  which  it  is  closely 
allied  to  Ethics  and  to  Metaphysics,  it  is,  on  the  other 
hand,  no  less  intimately  connected  with  Archaeology  and 
History ;  that  its  phenomena  grow  from  many  independent 
roots,  and  are  formed  and  coloured  according  to  the  char- 
acter of  the  various  soUs  from  which  they  have  sprung- 
But  to  say  this  is  only  to  say  that  the  facts  from  which 
Jurisprudence  generalises  are  furnished  by  History,  the 
record  of    human  actions.     Identical    human  needs    have 


12 


JURISPRUDENCE. 


been  satisfied  by  various  means,  and  all  the  means  of 
satisfying  each  of  these  needs  have  not  been  in  simul- 
taneous use  in  every  part  of  the  world  and  in  every  age. 
In  the  satisfaction  of  their  wants  mankind  have  seldom 
seen  clearly  the  ends  at  which  they  were  aiming,  and  have 
therefore  in  reaching  after  those  ends  invented  a  vast 
variety  of  perverse  complications.  The  unity,  in  short, 
which  it  is  the  business  of  Jurisprudence  to  exhibit  as 
underlying  all  the  phenomena  which  it  investigates,  is  the 
late  discovery  of  an  advanced  civilisation,  and  was  for  a 
long  time  unperceived  while  those  phenomena  were  ac- 
cumulating. The  facts  can  only  be  presented  by  History, 
and  History  may  be  studied  with  the  sole  view  of  dis- 
covering this  class  of  facts.  But  this  is  not  the  task  of 
Jurisprudence,  which  only  begins  when  these  facts  begin 
to  fall  into  an  order  other  than  the  historical,  and  arrange 
themselves  in  groups  which  have  no  relation  to  the  varieties 
of  the  human  race.  The  province  of  Jurisprudence  is 
to  observe  the  wants  for  the  supply  of  which  laws  have 
been  invented,  and  the  manner  in  which  those  wants  have 
been  satisfied.  It  then  digests  those  actual  wants,  and 
the  modes  in  which  they  have  actually  been  satisfied, 
irrespectively  of  their  historical  or  geographical  distribu- 
tion, according  to  a  logical  method.  One  work  on  Juris- 
prudence may  contain  more  of  historical  disquisition,  while 
in  another  philosophical  argument  may  predominate ;  but 
such  differences  are  incidental  to  the  mode  of  treatment, 
and  afford  no  ground  for  a  division  of  the  science  itself. 

But  though  the  science  is  one,  it  may  have  as  many 
heads  or  departments  as  there  are  departments  of  law. 
It  would  therefore  be  unobjectionable  to  talk  of  'criminal' 
and '  civil,' '  public '  and  '  private '  Jurisprudence. 


Juris-  To  sum  up.  The  term  Jurisprudence  is  wrongly  applied 

defined*'^       to  actual  systems  of  law,  or  to  current  views  of  law,  or 

to  suggestions  for  its  amendment,  but  is  the  name  of  a 


DEFINITION    OF    THE    TERM.  13 

science.  This  science  is  a  formal,  or  analytical,  rather  than 
a  material  one.  It  is  the  science  of  actual,  or  positive,  law. 
It  is  wrongly  divided  into  'general'  and  'particular,'  or 
into  'philosophical'  and  'historical.'  It  may  therefore  be 
defined  provisionally  as  'the  formal  science  of  positive 
law.'  The  full  import  of  this  definition  will  not  be 
apparent  till  after  the  completion  of  an  analysis  of  the 
all-important  term  *  Law.' 


CHAPTER  II. 


LAW. 


Meaning 
of  the 
term  Law. 


Ambi- 
guity of 
lus,  Recht, 
Droit. 


*Law,  or  the  law,'  says  Bentham,  'taken  indefinitely, 
is  an  abstract  or  collective  term,  which,  when  it  means 
anything,  can  mean  neither  more  nor  less  than  the  sum 
total  of  a  number  of  individual  laws  taken  together  ^' 

This  simple  statement  is  in  striking  contrast  with 
a  multitude  of  assertions  upon  the  subject ;  which  however 
are  less  frequently  made  with  reference  to  the  Enghsh 
term  Law  than  to  its  equivalents  in  other  languages. 
The  terms  lus,  Recht,  Droit,  cannot,  in  fact,  be  said  to 
express  nothing  more  than  'the  sum  total  of  a  number 
of  individual  laws  taken  together.'  It  so  happens  that 
all  these  terms  denote  not  only  the  sum  total  of  Laws, 
but  also  the  sum  total  of  Rights  (lura,  Rechte,  Droits), 
and  the  sum  total  of  all  that  is  just  (iustum,  recht,  droit). 
When  therefore  we  say  that  Jurisprudence  is  the  science 
of  lus,  Recht,  or  Droit,  we  may  mean  in  each  case  that 
it  is  the  science  of  any  one  of  three  things,  viz. 

(1)  of  Law, 

(2)  of  Rights, 

(3)  of  Justice ; 

*  Works,  i.  p.  148.  Cf.,  among  the  meanings  of  'lus'  enumerated  by 
Puffendorf,  i.  i.  §  20,  'complexus  seu  systema  leguni  homogenearum.' 


MEANING   OF    THE    TERM    'A    LAW.'  1$ 

and,  unless  this  ambiguity  be  borne  in  mind,  many  ex-  chap,  i 
pressions  having  apparent  reference  to  law  will  be  quite 
unintelhgible  \  But  a  coherent  science  cannot  be  con- 
structed upon  an  idea  which  has  complex  or  shifting 
meanings.  One  or  other  meaning  must  be  chosen,  and 
when  chosen  must  be  made  the  sole  foundation  of  the 
edifice.  It  is  therefore  a  piece  of  good  fortune  that  when 
we  say  in  English  that  Jurisprudence  is  the  science  of  law, 
we  are  spared  the  ambiguities  which  beset  the  expression 
of  that  proposition  in  Latin,  German,  and  French,  and 
have  greatLy  obscured  its  exposition  in  those  languages. 

But  if  the  English  abstract  term  '  Law  '  is  free  from  any  Meaning 
suggestion  of  the  aggregate  of  Rights,  or  of  the  aggregate  ^rm^' a 
of  just  things,  it  is  of  course  suggestive  of  all  the  meanings  '^^•' 
in  which  the  concrete  term  'a  law'  is  employed  in  our 
language ;  and  these  have  unfortunately  been  so  numerous 
as  to  involve  the  abstract  idea  in  considerable  obscurity. 
Hence  it  is  that  so  many  of  the  definitions  which  have 
been   given   of   that   mysterious   non-entity  strike   us   as 
being  vague   or   merely  eulogistic.    Many  of  them   have 
reference   to   that  divine   order   which   pervades   the   in- 
animate universe  even  more  than  the  actions  of  rational 
beings ;  and  those  of  them  which  have  reference  to  human 
action  deal  quite  as  often  with  the  voluntarily  observed 
maxims  of  society  as  with  rules  which  are  supported  by 
the  authority  of  the  State. 

Heterogeneous  however  as  the  sense  of  the  term 
'  a  law '  may  at  first  sight  appear,  the  connection  between 
them  is  not  hard  to  trace ;  nor  is  the  earliest  use  Avidely 
different  from  the  latest  and  most  accurate. 

The  shepherd  who  guides  his  flock,  or,  on  a  larger  scale.  Its  earli- 

6Stj  11S6 

the  head  of  a  family  who  regulates  its  encampments  and 


•  '  So  Lord  Westbury  was  at  the  pains  to  explain  that  the  word  ius,  in 
the  maxim  ignorarUia  iuris  haud  excusat,  is  used  in  the  sense  of '  general  law, 
the  ordinary  law  of  the  coimtry,'  not  in  the  sense  of  '  a  private  right.* 
Cooper  V.  Phibbs,  L.  R.  2  H.  L.  170. 


uses. 


l6  LAW. 

employments,  seems  to  have  been  the  earliest  *  lawgiver,' 
and  his  directions,  as  orders  given  by  one  who  has  power 
to  enforce  their  observance,  are  the  earliest  'laws^'  The 
original,  and  still  the  popular,  conception  of  a  'law,'  is 
a  command,  disobedience  to  which  will  be  punished, 
prescribing  a  course  of  action.  This  conception  necessarily 
implies  that  of  a  lawgiver,  who  has  power  to  enforce  his 
commands^.  From  this  vague  original  use  of  the  term 
has  arisen  that  large  development  of  uses,  some  proper, 
some  merely  metaphorical,  out  of  which  the  jurist  has 
to  select  that  which  he  admits  into  his  science. 
Derivative  The  strongest  intellectual  tendency  of  mankind  is  the 
anthropomorphic.  If  man  is  a  mystery  to  himself,  ex- 
ternal nature  is  a  still  greater  mystery  to  him,  and  he 
explains  the  more  by  the  less  obscure.  As  he  governs 
his  flock  and  his  family,  so  he  supposes  that  unseen  beings 
govern  the  waters  and  the  winds.  The  greater  the  regu- 
larity which  he  observes  in  nature,  the  fewer  such  beings 
does  he  suppose  to  be  at  work  in  her;  till  at  length  he 
rises  to  the  conception  of  one  great  being  whose  laws  are 
obeyed  by  the  whole  universe;  or  it  may  be  that,  having 
thus  arrived  at  the  notion  of  a  universe  moving  according 


1  So  Homer  says  of  the  Cyclopes,  Qefxiffrtiei  Se  enaffros  iralJiwi'  ^5'  ax6xi»i', 
Odyss.  ix.  114;  and  Plato,  OStoi  ipa  tuv  iraXaiuv  &piaToi  vo^ioQiTaiy(y6vaai, 
vofteis  Tf  (col  iroififves  avSpcoy,  Minos,  p.  320  B.  It  may  be  worth  while  to 
notice  that  vifios  (as  distinguished  from  yofj.6s)  does  not  occur  in  Homer. 
Hesiod  uses  it  twice,  both  times  in  the  singular  number,  in  the  Op.  et 
Dies,  276,  388;  and  it  occurs  in  the  Theogonia.  The  Homeric  word  most 
nearly  expressive  of  laws  is  Sffiiarts,  which  however  really  signifies  rather 
decrees  made  for  special  cases.  Grote,  Hist.  ii.  p.  m;  Maine,  Ancient 
Law,  ch.  i.  Cicero  derives  v6fios  '  a  suum  cuique  tribuendo,'  De  Legg.  i.  6. 
It  is  surely  reversing  the  order  of  ideas  to  suppose  that  the  use  of  6/iOi 
in  the  sense  of  'a  chant'  is  the  original  one,  as  does,  e.  g.,  Fustel  de 
Coulanges,  La  Cit6  Antique,  p.  227. 

2  Prof.  Max  MuUer  seems  to  have  thought  that,  among  the  Hindoos  at 
all  events,  the  order  of  ideas  was  the  converse.  In  the  Vedic  Hymns, 
Rita,  he  says,  from  meaning  the  order  of  the  heavenly  movements,  became 
in  time  the  name  for  moral  order  and  righteousness.  Hibbert  Lectures, 
1878,  p.  235. 


ITS   TWO   MEANINGS.  17 

to  law,  he  holds  fast  to  it,  even  while  he  loses  his  hold     chap.  n. 
on  the  idea  of  the  existence  of  a  supreme  lawgiver. 

Men  have  also  almost  always  believed  themselves  to  be 
acquainted  with  certain  rules  intended  for  the  guidance  of 
their  actions,  and  either  directly  revealed  to  them  by  a 
superhuman  power,  or  gathered  by  themselves  from  such 
indications  of  the  will  of  that  power  as  are  accessible. 
They  have  supposed  that  they  have  discovered  by  self- 
analysis  a  master  part  of  themselves,  to  the  dictates  of 
which  they  owe  allegiance.  They  have  observed  that, 
in  order  that  their  senses  may  receive  certain  impressions 
from  external  objects,  those  objects  must  be  arranged  in 
certain  ways,  and  no  other. 

It  is  easy  enough,  upon  consideration  of  these  facts,  to 
account  for  the  existence  of  such  phrases  as  laws  of 
Nature,  laws  of  God,  laws  of  Morahty,  laws  of  Beauty, 
and  others  which  will  at  once  suggest  themselves. 

The  employment  of  the  same  name  to  denote  things  so  The 

T-v  ,  ,  J.      •       1  -  T  separation 

dinerent    may  appear    to  us    to  imply  an  extraordmary  of  t^g 

confusion  of  the  topics  appropriate  to  Theology,  to  Physics,  sciences. 

to  Ethics,  to  Esthetics,  and  to  Jurisprudence;  but   the 

wonder  will  be  less  if  we  remember  that  the  separation 

of   the  sciences  to  which  we  are  accustomed,  and  which 

we  take  for  granted,  was  unknown  to  remote  antiquity. 

The  world  with  all  its  varied  phenomena  was  originally 

studied  as  a  whole.    The  facts  of  nature  and  the  doings 

of  man  were  alike  conceived  of  as  ordained  by  the  gods. 

The  constitutions  of  states  and  the  customs  and  laws  of 

all    the    peoples  of    the  earth   were    as   much  of    divine 

contrivance    as    the    paths   of    the    planets.     The    great 

problem  thus  presented  for  the  study  of  mankind  was 

gradually  broken  up  into  a  number  of  minor  problems. 

There  occurred  a  division   of  the  sciences.    A   line  was 

drawn    between  those  which  deal  with  external  nature, 

including  Theology  and  Metaphysics,  and  those  which  deal 

with  the  actions  of  men.  These  latter,  the  practical,  were 


i8 


LAW. 


CHAP.  ir. 


Use  of  the 
term  in 
the  phy- 
sical 
sciences; 


in  the 

practical 

sciences. 


thus  severed  from  the  theoretical  sciences  * ;  and  the  term 
law,  which  had  been  used  ambiguously  in  the  discussion 
of  both  sets  of  topics  before  their  severance,  has  henceforth 
two  distinct  histories.  In  the  theoretical  sciences,  it  is 
used  as  the  abstract  idea  of  the  observed  relations  of 
phenomena,  be  those  relations  instances  of  causation  or 
of  mere  succession  and  co-existence.  In  the  practical 
sciences  the  term  is  used  to  express  the  abstract  idea  of 
the  rules  which  regulate  human  action. 

In  the  theoretical,  or  as  we  should  rather  say  in  modern 
phrase,  in  the  physical  sciences.  Law  is  used  to  denote  the 
method  of  the  phenomena  of  the  universe;  a  use  which 
would  imply,  in  accordance  with  the  primitive  meaning  of 
the  term,  that  this  method  is  imposed  upon  the  phenomena 
either  by  the  will  of  God,  or  by  an  abstraction  called 
Nature. 

This  use  of  the  term  may  certainly  lead  to  miscon- 
ceptions. It  has  long  ago  been  agreed  that  all  we  can 
know  of  natural  phenomena  is  that  they  co-exist  with, 
or  succeed,  one  another  in  a  certain  order,  but  whether  this 
order  be  imposed  immediately  by  a  divine  will,  or  mediately 
through  an  abstraction  called  Nature,  or  through  minor 
abstractions  called  Gravitation,  Electricity,  and  the  like, 
the  phenomena  themselves  are  unable  to  inform  us.  It  is 
therefore  necessary  to  realise  that  when  we  talk  of  the 
laws  of  Gravity  or  of  Refraction,  we  mean  merely  that 
objects  do  gravitate  and  that  rays  are  refracted.  We  are 
using  the  term  law  merely  to  convey  to  our  minds  the 
idea  of  order  and  method,  and  we  must  beware  of  import- 
ing into  this  idea  any  of  the  associations  called  up  by  the 
term  when  it  is  employed  in  the  practical  sciences. 

Its  use  in  these  sciences  is,  speaking  very  generally,  to 
express  a  rule  of  human  action ;  and  the  sciences  of  human 
action  being  those  in  which  the  term  is  most  used,  and 

*  They  are  henceforth  connected  only  by  means  of  religion,  and  by 
speculations  concerning  the  faculties  of  the  human  mind. 


AS   THE   ORDER   OF   THE    UNIVERSE.  19 

indeed  is  most  needed,  it  is  reasonable  to  say  that  this    chap.  ii. 
is  its  proper  meaning,  and  that  its  use  in  the  theoretical 
sciences  is  improper,  or  metaphorical  merely. 

But  just  as  its  metaphorical  use,  as  meaning  'order,'  is 
sometimes  obscured  by  associations  derived  from  its  proper 
use  as  signifying  '  a  rule,'  so  is  its  proper  use  as  *  a  rule  * 
occasionally  confused  by  an  imagined  parity  between 
a  rule  and  the  invariable  order  of  nature. 

The  first  step  therefore  towards  clearing  the  term  Law 
of  ambiguity  for  the  purposes  of  Jurisprudence  is  to 
discard  the  meaning  in  which  it  is  employed  in  the 
physical  sciences,  where  it  is  used,  by  a  mere  metaphor, 
to  express  the  method  or  order  of  phenomena,  and  to  adopt 
as  its  proper  meaning  that  which  it  bears  in  the  practical 
sciences,  where  it  is  employed  as  the  abstract  of  rules  of 
human  action. 

The  opposition  between  these  two  meanings  will  be  best  The  two 
seen  by  grouping  together,  under  the  heads  of  Order  and    ^^  ^^' 
Rule  respectively,  a  few  characteristic  specimens  of  the 
vague  employment  of  the  term  Law. 


I.   Xaw  as  the  order  of  the  Universe. 

'  Law  is  the  King  of  Kings,  far  more  powerful  and  rigid  Order 
than  they:   nothing  can  be  mightier  than  law,  by  whose 
aid,  as  by  that  of  the  highest  monarch,  even  the  weak  may 
prevail  over  the  strong.'  —  The  Vedas  ^ 

No^os,  o  iravTiav  jSao-tAcvs 

OvaTtiiv  T€  KoX  adavoLTHiv.  —  Pindar  ^. 

"ETTct    /cat    Tov     0A.0V     Koafiov,    Kol    TO.    6u.a    KoX  Ta.<i    Kokovfievas 
(opas,    vofi(K    Ktti    Tci^ts,    et    )(prj    rots    opw/Acvois    TrtOTcvctv,    SioikcIv 

<f>aLV€Tai.  —  Demosthenes  ^ 

'  Sat.  Br.  14.4,  2.23;Br.  Ar.Up.  1,4, 14,  cited  TagoreLect.  1880,  p.  136. 
*  '  Law,  the  King  of  All  both  mortals  and  immortals.'    Apud  Plat. 
Gorg.  484  B. 

^  '  Since  also  the  whole  world,  and  things  divine,  and  what  we  call  the 


20  LAW. 

CHAP.  II.  'O    vofioi    6    Koivos,     oairep     iarlv    6     6p6o^    \oyos     Sia    Trdvrmv 

ip)(6fi€vo^,    6    auTos    Siv    Tw    All    KaOrjycfWvi    tovtw     ttjs    rdv  oXwv 

SioiKT/crcws  ovTi.  —  Chrysippus  ^ 

*Lex  vera  atque  princeps,  apta  ad  iubendum  et  ad 
vetandura,  ratio  est  recta  summi  lovis.' — Cicero  ^ 

'Lex  aeterna  nihil  aliud  est  quam  sununa  ratio  divinae 
sapientiae,  secundum  quod  est  directiva  omnium  actuum  et 
motionum.'  —  S.  Thomas  ^ 

*  Of  Law  there  can  be  no  lesse  acknowledged,  than  that 
her  seate  is  the  bosome  of  God,  her  voyce  the  harmony 
of  the  world,  all  things  in  Heaven  and  Earth  doe  her 
homage,  the  very  least  as  feeling  her  care,  and  the  greatest 
as  not  exempted  from  her  power;  both  angels  and  men 
and  creatures  of  what  condition  soever,  though  each  in 
different  sort  and  manner,  yet  all  with  uniforme  consent, 
admiring  her  as  the  mother  of  their  peace  and  joy.'  — 
Hooker  *. 

11.  Z/ttw  as  a  rule  of  Action. 

Rule.-  'Lex    est    recta    ratio    imperandi  atque   prohibendi.'  — 

Cicero  ^. 

'Lex  nihil  aliud  nisi  recta  et  a  numine  deorum  tracta 
ratio,  iubens  honesta,  prohibens  contraria.' — Cicero®. 

'  lus  est  ars  boni  et  aequi.'  —  Celsus  ^. 

'Any  kind  of  rule  or  canon  whereby  actions  are 
framed.'  .  .  . 

'  That  which  reason  in  such  sort  defines  to  be  good  that 
it  must  be  done.'  —  Hooker  ^ 

'  Der  Inbegriff  der  Bedingungen  unter  denen  die  Willkiihr 
des  Einen  mit    der  Willkiihr    des    Anderen  nach  einem 


Seasons,  appear,  if  we  may  trust  what  we  see,  to  be  regulated  by  Law 
and  Order.'   Adv.  Aristog.  B.  p.  8o8. 

*  'The  common  law,  which  is  the  right  reason  moving  through  all 
things,  identical  with  Zeus,  the  supreme  administrator  of  the  Universe.' 
Apud  D.  Laert.  vii.  88.  '  De  Leg.  ii.  4-   Cf.  ib.  iii.  i. 

"  I.  2.  qu.  93.  art.  i.  *  Eccl.  Pol.  i.  c.  18.  *  De  Leg.  i.  15. 

'  Phil.  xi.  12.  ^  Dig.  i.  I.  I.  "  Eccl.  Pol.  i.  c.  3,  c.  8. 


AS   A  RULE   OF   ACTION.  21 

allgemeinen  Gesetze  der  Freiheit  vereinigt  werden  kann.' —     chap.  ii. 
Kant  \ 

'Der  abstracte  Ausdruck  des  allgemeinen,  an  und  fur 
sich  seienden  Willens.'  —  Hegel  ^. 

'Das  organische  Ganze  der  ausseren  Bedingungen  des 
vernunftgemassen  Lebens.'  —  Krause  ^ 

'  Die  Kegel  wodurch  die  unsichtbare  Granze  bestimmt 
wird,  innerhalb  welcher  das  Daseyn  imd  die  Wirksamkeit 
jedes  Einzelnen  einen  sichern  freyen  Raum  gewinnt.'  — 
Savigny  *. 

The  term  Law  is  employed  in  Jurisprudence  not  in  the  Diversity 

oi  rulGS 

sense  of  the  abstract  idea  of  order,  but  in  that  of  the  mailed 
abstract  idea  of  rules  of  conduct.  But  of  these  rules  only  ^^• 
a  particular  class  are  '  laws '  in  the  strict  sense  of  the  term ; 
so  that  although  the  jurist  is  in  no  danger  of  getting 
entangled  in  questions  of  physical  science,  he  is  obliged 
to  busy  himself  in  marking  the  boundary  which  separates 
his  own  department  of  study  from  the  wider  field  of 
morality.  His  task  is  so  to  narrow  and  deepen  the 
popular  conception  of  'a  law'  in  the  sense  of  a  rule  of 
action,  as  to  fit  it  for  his  own  purposes.  This  task  will 
be  undertaken  in  the  next  chapter ;  before  entering  upon 
which  it  may  perhaps  be  as  well  to  point  out  how  various 
in  character  are  those  precepts  for  the  guidance  of  the 
life  and  conduct  of  men  to  which  the  term  law  is  with 
more  or  less  propriety  applied. 

While  some  of  these  precepts  are  received  wherever 
human  beings  are  gathered  together,  others  are  limited 

*  '  The  sum-total  of  the  conditions  under  which  the  personal  wishes  of 
one  man  can  be  combined  with  the  personal  wishes  of  another  man,  in 
accordance  with  ageneral  law  of  Freedom.'  Rechtslehre,  Werke,  vii.  p.  27. 

^  'The  abstract  expression  of  the  general  Will,  existing  in  and  for 
itself.'    Propiideutik,  Cursus,  i.  §  26. 

'  '  The  organic  whole  of  the  external  conditions  of  life  in  conformity  to 
reason.'   Abriss  des  Systemes  der  Philosophic  des  Rechtes,  p.  209. 

*  '  The  rule  whereby  the  invisible  border-line  is  fixed  within  which  the 
being  and  the  activity  of  each  individual  obtains  a  secure  and  free  space.' 
System,  i.  p.  332. 


22 


LAW. 


Character- 
istics com- 
mon to  all 
of  them. 


to  the  followers  of  a  particular  religion,  or  to  the  inhabi- 
tants of  a  definite  portion  of  the  earth's  surface.  While 
some  of  them  deal  with  the  fundamental  institutions  of 
society,  others  are  occupied  with  the  pettiest  details 
of  ceremonial  or  deportment.  Some  are  enforced  by  the 
whole  power  of  great  empires,  whilst  others  may  be 
violated  by  any  one  who  is  not  afraid  to  encounter  the 
banter  of  his  acquaintance.  They  possess,  however, 
certain  characteristics  in  common,  which  must  be  briefly 
enumerated. 

They  all  either  are,  or  may  be,  expressed  as  distinct 
propositions.  They  are,  further,  propositions  addressed  to 
the  will  of  a  rational  being. 

Of  the  two  kinds  of  propositions  which  may  be  so 
addressed,  they  are  commands ;  that  is  to  say,  precepts 
in  which  the  cause  of  obedience  depends  on  the  will  of  him 
who  commands ;  not  counsels,  which  are  precepts  in  which 
the  reason  of  obedience  is  taken  from  the  tiling  itself 
which  is  advised  \  Being  commands,  they  are  accom- 
panied by  a  sanction ;  that  is  to  say,  they  imply,  if  they 
do  not  express,  an  intimation  that  their  author  will  see 
to  their  being  obeyed;  not  necessarily  by  a  threat  of 
punishment,  as  such,  but  also  by  a  promise  of  interference 
to  prevent  disobedience,  or  to  reinstate  things  in  the 
position  in  which  they  were  before  the  act  of  disobedience. 

Lastly,  they  are  general  commands.  They  relate  to 
courses  of  conduct,  as  opposed  to  special  commands,  which 
enjoin  only  a  particular  action  ^ 


'  Hobbes,  Works,  ii.  p.  183.  On  'Imperium'  and  'Consilium,'  cf. 
Thomasius,  Fundamenta  I.  Naturae  et  G.  1705,  p.  133. 

*  Austin,  i.  p.  11.  On  the  other  hand,  Blackstone,  i.  p.  44,  makes  the 
generality  of  a  law  depend  on  its  being  addressed  to  a  class  of  persons.  So 
Cicero,  de  Leg.  iii.  19,  'legis  haec  vis  est  scitum  et  iussum  in  omnes.' 
A.  Gellius,  X.  20,  takes  Capito's  definition  of  lex  as  'generale  iussum'  to 
imply  that  it  must  be  '  de  universis  civibus,'  as  opposed  to  '  privilegia,' 
and  Ulpian,  'iura  non  in  singulas  personas,  sed  generaliter  constituuntur,' 
Dig.  i.  3.  8.  Cf.  Bentham,  Nomography,  c.  i,  Works,  iii.  p.  233.  Sir  H. 
Maine  attributes  the  'generality'  of  law,  in  both  senses,  to  the  great 


AS   A    RULE   OF   ACTION.  23 

Laws,  therefore,  in  the  vague  sense  of  rules  of  human     chap.  n. 
action,  are  propositions  commanding  the  doing,  or  abstain- 
mg  from,  certain  classes  of  actions ;  disobedience  to  which 
is  followed,  or  is  likely  to  be  followed,  by  some  sort  of 
penalty  or  inconvenience. 

There  are  many  propositions  of  this  kind  which  no  one 
is  likely  seriously  to  mistake  for  laws.  It  is  generally 
understood  that  such  phrases  as  the  laws  of  honour,  or 
of  etiquette,  are  employed,  by  way  of  analogy  merely, 
to  indicate  rules  which,  either  by  their  trifling  importance, 
or  from  the  limited  circle  in  which  they  are  recognised, 
differ  widely  from  precepts  which  are  of  such  vital 
moment,  either  on  account  of  the  penalties  attached  to 
their  violation,  or  of  the  general  acceptance  which  they 
find,  as  to  be  more  ordinarily  talked  of  as  '  laws.' 

The  rules  of  human  action  which  are  most  often  con-  Uses  most 
fused  with  laws  proper,  are  those  which  are  called  laws  confused 
of  God,  laws  of  nature,  and  laws  of  morahty.    So  closely?^***  ^^^^ 
indeed  are  these  topics  connected  with  those  proper  to 
Jurisprudence,  that  many  of  the  older  works  on  the  subject 
are  occupied  as  much  with  the  laws  of  God,  or  of  nature, 
as  with    law   proper.     Sir  Walter  Raleigh,  for  instance, 
begins  a  dissertation  upon  Law,  by  stating  that  laws  are 
of  three  kinds  —  the  eternal  or  uncreated;    the  natural 
of  internal ;  and  those  which  are  imjwsed,  or  of  addition. 
These  last,  which  are  'explicatory  and  perfecting  to  the 
law  of  nature,'  are  either  divine  or  human ;  both  of  which 
kinds  are  again  variously  subdivided  \ 

It  will  therefore  be  necessary  to  touch  briefly  on  those 
classes  of  so-called  laws  which  are  occasionally  confused 
with  laws  properly  so  called. 

distance  at  which  the  force  wielded  by  the  Sovereign  has  to  act  upon  the 
bulk  of  the  persons  exposed  to  it.  Early  Hist,  of  Inst.  p.  393.  On  the 
advantages  and  disadvantages  of  this  characteristic  of  law,  cf .  Arist.  Pol. 
iii.  15.  5;   Liv.  2.  3. 

'  Works,  iii.  p.  loi ;  Hobbes,  Works,  ii.  p.  186.  Cf.  Hooker,  Eccl.  Pol. 
i.  c.  15;  Locke,  Hum.  Understanding,  ii.  §6. 


CHAPTER  III. 


LAWS    AS    RULES    OF   HUMAN    ACTION. 


Uses  of  the 
term  in 
the  prac- 
tical 
sciences. 


The  use  of  the  term  Law  in  any  but  the  sciences  called 
practical  or  moral,  that  is  to  say  which  have  to  do  with 
the  human  will,  is  thus  merely  metaphorical,  and  irre- 
levant to  our  inquiry  \  Our  only  real  difficulty  is  to  draw 
a  sharp  line  between  the  meaning  in  which  the  term  is 
used  in  Jurisprudence  and  that  in  which  it  is  used  in  the 
other  practical  sciences.  The  task  is  the  more  difficult 
that  the  line  has  not  at  all  times  been  so  sharply  drawn 
as  it  is  now  possible  and  desirable  to  draw  it  ^ 

The  common  characteristics  of  the  moral  sciences,  cover- 
ing as  they  do  collectively  the  phenomena  of  human 
action,  using  that  term  in  the  widest  sense,  as  including 
all  volitions,  whether  accompanied  or  not  by  external 
movement,  may  be  summed  up  as  follows :  They  postulate 
a  will;  free  at  any  rate  so  far  as   to  be  mfluenced  by 


*  The  reader  need  hardly  be  reminded  that  by  a  '  practical  science'  is 
not  meant  a  body  of  rules  for  the  government  of  practice  (which  would  be 
an  art),  but  the  study  of  the  principles  upon  which,  as  a  matter  of  fact, 
human  action  is  governed. 

^  The  expression  in  Greek  writers  coming  nearest  to  what  we  mean  by 
Jurisprudence  is  probably  '  Politiko.'  Aristotle,  Etli.  Nic.  x.  lo.  23, 
divides  ^  wfpl  ri  avSpdwiva  (pi\offo<i>la  into  Ethike  and  Politike, 


ETHIC   AND   NOMOLOGY.  2$ 

motives  presented  to  it.  They  postulate  the  determination  chap.  hi. 
of  that  will  by  other  causes  than  the  mere  sensations  of 
the  moment,  and,  more  specifically,  by  respect  for  rules 
of  life  and  conduct.  They  have  many  fundamental  ideas 
in  common,  such  as  freedom,  act,  obligation,  sanction, 
command;  ideas  which  they  are  not  bound  to  analyse 
exhaustively,  but  employ  in  accordance  with  the  usage  of 
ordinary  language,  and  in  senses  which  might  be  accepted 
by  widely  opposed  schools  of  speculation.  Each  science 
must  define  and  classify  such  ideas  so  far  as  is  necessary 
for  its  own  purposes,  leaving  their  full  and  final  investiga- 
tion to  Psychology  or  Metaphysics.  Unless  the  sciences 
so  far  respect  each  other's  boundaries,  a  treatise  upon  any 
one  of  them  must  be  preceded  by  a  sketch  of  all  the  rest ; 
and  thus  it  has  happened  that  systems  of  Jurisprudence 
have  been  encumbered  with  digressions  and  polemics  upon 
questions  lying  wholly  outside  of  its  appropriate  province. 

The  resemblances  and  differences  in  the  employment  of  Division 
the  term  '  a  law '  in  the  several  practical  sciences  must  be  practical 
explained  by  the  resemblances  and  differences  between  the  sciences, 
sciences  themselves.    The  grand  division  of  these  sciences 
is  between  that  which  deals  with  states  of  the  will,  irre- 
spectively of  their  outward  manifestation  in  act,  and  those 
which  deal  with  states  of  the  will  only  so  far  as  they  are 
manifested    in    action*.     The    former    regards,  while    the 
latter  disregard,  those  internal  acts  of  the  will  which  do 
not  result  in  outward  acts  of  the  body. 

The  former  kind  of  science  is  '  Ethic'    The  latter  kinds    • 
possess  no  received  collective  name,  but  may  perhaps  be 
provisionally  designated  '  Nomology.' 

The  essential  difference  between  them  is  that  Ethic  deals 

not  only  with  the  outward  results  of  the  determination  of 

that  faculty  of  respect  for  a  rule  which  is  the  basis  of  all 

the  moral  sciences,  but  also,  and  rather,  with  the  balance 

*  Including  therein  willed  inaction. 


26 


LAWS   AS    RULES    OF   HUMAN   ACTION. 


Ethic. 


of  inward  forces  by  which  those  results  are  produced.  It 
looks  not  only  to  the  sort  of  acts  which  men  do,  but  also 
to  the  sort  of  men  who  do  them  S  Nomology,  on  the  other 
hand,  deals  entirely  with  the  conformity  or  non-conformity 
of  outward  acts  to  rules  of  conduct. 

Ethic  is  the  science  of  the  conformity  of  human  char- 
acter to  a  type;  Nomology,  of  the  conformity  of  actions 
to  rules. 

Ethic  is  the  science  mainly  of  duties;  while  Nomology 
looks  rather  to  the  definition  and  preservation  of  rights. 
The  terms  right  and  duty  are  of  course  correlatives,  and 
are  common  to  both  Ethic  and  Nomology ;  but  the  former 
science,  in  accordance  with  its  more  inward  nature,  looks 
rather  to  the  duties  which  are  binding  on  the  conscience ; 
the  latter  looks  to  the  rights  which  are  the  elements  of 
social  life. 

Ethic  has  been  well  described  by  Kant  as  concerned 
with  the  laws  for  which  external  legislation  is  impossible  ^ 
It  is  the  science  of  those  rules  which  when  known  are 
themselves  adopted  by  the  will  as  its  objects  or  aims. 
This  rightness  of  will  can  never  be  enforced  by  external 
legislation,  but  must  be  the  free  choice  of  the  individual. 
All  that  external  legislation  can  do  is  to  affect  the  external 
expression  of  the  will  in  act ;  and  this,  not  by  a  rectifica- 
tion of  the  aim  itself  of  the  will,  but  by  causing  the  will 
to  follow  out  in  act  another  aim. 


Nomology.  The  science  of  this  office  of  external  regulation  is  what 
we  have  called  'Nomology.'  It  may  be  defined  as  'the 
science  of  the  totality  of  the  laws  for  which  an  external 
legislation  is  possible '.' 

'  So  Arist.  Eth.  Nic.  ii.  4.  Law  commands  not  avSpdav,  but  ret  toC 
aySpflov.     lb.  iii.  8.  i;   v.  i.  14.  ^  Tugendlehre,  Werke,  vii.  p.  182. 

^  This  definition  is  applied  by  Kant,  Rechtslelire,  ib.  p.  27,  to  the 
science  of  Law.  He  opposes  ' Rechtslehre '  to  'Tugendlehre,'  making 
these  two  species  exhaust  the  genus  '  Sittenlehre.'  Now  we  have 
endeavoured  to  explain  that  this  genus  contains  the  two  species  '  Ethic,' 


MORAL   LAWS.  27 

The  moral  sciences  having  thus  been  grouped  under  the  chap.  iii. 
head  of  Ethic,  in  whicli  the  object  of  investigation  is  the 
conformity  of  the  will  to  a  rule;  and  of  Nomology,  in 
which  the  object  of  investigation  is  the  conformity  of  acts 
to  a  rule,  we  pass  by  the  former,  as  foreign  to  our  subject, 
and  confine  our  attention  to  the  latter. 

Nomology,    the    science    of    external    action,    must    be  Rules  of 

OX  ^ff*  m  fil 

divided,  according  to  the  authority  by  which  the  rules  of  action 
which  it  treats  are  enforced,  into  — 

I.  A    science    of    rules    enforced    by    indeterminate 
authority. 

II.  A    science     of    rules    enforced    by    determinate 
authority. 

I.  What  may  be  vaguely  called  '  moral  laws '  are  of  very  enforced 
various  origin  and  obligation.    Their  common  character- ^^i^jj^^^g 
istic  is  that,  although  no  definite  authority  can  be  appealed  authority, 
to  in  case  of  their  infraction,  yet  those  who  obey  them  are 
regarded  with  favour,  and  those  who  disobey  them  with 
disfavour,  either  by  society  in  general  or  by  a  section  of 
it.    Under  this  large  category  may  be  classed  the  laws 
of  usage  in  the  pronunciation  of   words,  of  fashion   in 
the  choice  of  dress,  of  social  demeanour,  of  professional 
etiquette,  or  of  honour  between  gentlemen,  as  well  as  the 
gravest  precepts  of  morality,  specifically  so  called.    All  of 
them  possess  the  common  characteristic  of  being  generally 
received  in  certain  circles  of  society,  while  anything  done 
in  contravention    of   them    exposes    the    transgressor  to 
various  shades  of  ridicule,  hatred  or  coercion. 

The  weakest  sort  of  these  rules  are  undoubtedly  those  Laws  of 
of  fashion   and  etiquette;  deviation  from  which  is  called  ' 

andwhatwe  have  called  'Nomology,' which  latter,  besides  Jurisprudence, 
contains  other  sub-species.  We  submit  that  Kant's  definition,  as  he 
applies  it,  is  too  wide.  There  are  rules  of  action  which  can  be  imposed 
by  external  authority,  and  yet  are  not  laws.  His  definition  should 
apply,  as  we  have  applied  it,  to  a  class  of  sciences,  of  which  Jurisprudence 
is  only  one. 


28 


LAWS   AS    RULES    OF    HUMAN   ACTION. 


CHAP.  III. 


of  honour. 


of  moral- 
ity. 


eccentricity  or  vulgarity,  and  is  visited  by  penalties  vary- 
ing from  a  smile  to  ostracism  from  society. 

A  somewhat  stronger  force  may  be  attributed  to  the 
so-called  law  of  honour,  deviations  from  which  are  in  this 
country  stigmatised  as  '  conduct  unbecoming  a  gentleman.' 
This  however,  so  far  as  it  exceeds  in  delicacy  the  dictates 
of  ordinary  morality,  is  recognised  by  a  comparatively 
small  class,  and,  as  has  been  well  observed,  regulates  only 
the  duties  betwixt  equals  \  Far  more  important  are 
those  precepts  which  are  more  usually  called  principles 
of  morality,  and  the  infraction  of  which  is  called  vice. 

As  to  the  origin  and  authority  of  the  laws  of  fashion, 
and  of  the  code  of  honour,  there  is  no  mystery.  Every 
one  admits  that  these  are,  though  in  different  degrees, 
conventional,  and  have  grown  up  in  particular  circles  and 
states  of  society  to  which  they  were  found  beneficial. 
With  reference  to  those  wider  formulas  called  moral  prin- 
ciples, there  is  by  no  means  the  same  consent.  This  great 
body  of  maxims,  regulating  the  relations  of  man  to  man 
in  all  the  intercourse  of  life,  would  seem  to  have  grown 
up  partly  under  the  influence  of  religion,  partly  out  of 
speculative  theories,  partly  out  of  the  necessities  of  exist- 
ence. Which  of  these  ingredients  is  the  essential,  or  the 
most  essential,  element  of  morality,  may  well  be  questioned. 
It  is  at  any  rate  certain  that  morality  is  not  due  to  the 
direct  interposition  of  political  authority. 

Into  the  battles  which  are  perpetually  raging  as  to  the 
essential  quality  of  virtue  in  itself,  and  as  to  the  faculty 
by  which  the  virtuous  quahty  of  actions  is  discerned^, 
it  is  not  the  business  of  the  jurist  to  enter.  He  is  not 
obliged  to  decide  whether  the  criterion  of  virtue  be  con- 


*  Paley,  Mor.  Phil,  book  i.  ch.  2.  'The  law  of  Honour  is  a  system  of 
rules  constructed  by  people  of  fashion,  and  calculated  to  facilitate  their 
intercourse  with  one  another,  and  for  no  other  purpose.'  Ibid.  Cf. 
Ihering,  Der  Kampf  um's  Recht,  p.  25. 

*  See  6.  g.  Dugald  Stewart,  Pliilosophy  of  the  Active  and  Moral  Powers. 


MORAL   LAWS.  29 

duciveness  to  utility,  or  accordance  with  nature ;  nor  need 
he  profess  his  belief,  or  disbelief,  either  in  an  innate  moral 
sense,  or  in  a  categorical  imperative  of  the  practical  reason. 
These  are  the  hard  questions  of  Metaphysics.  The 
business  of  the  jurist  is,  in  the  first  place,  to  accept  as 
an  undoubted  fact  the  existence  of  moral  principles  in 
the  world,  differing  in  many  particulars  in  different  nations 
and  'at  different  epochs,  but  having  certain  broad  resem- 
blances; and,  in  the  second  place,  to  observe  the  sort  of 
sanction  by  which  these  principles  are  made  effective. 
He  will  then  be  in  a  position  to  draw  unswervingly  the 
line  which  divides  such  moral  laws  from  the  laws  which 
are  the  subjects  of  his  proper  science*. 

While  the  broad  resemblance  of  the  moral  principles  of 
mankind  is  universally  admitted,  the  occasional  diver- 
gencies between  them  are  frequently  lost  sight  of.  The 
truth  upon  this  point  is  admirably  expressed  by  Paley. 
'Moral  approbation,'  he  writes,  'follows  the  fashions  and 
institutions  of  the  country  we  Uve  in ;  which  fashions 
also  and  institutions  themselves  have  groAvn  out  of  the 
exigencies,  the  climate,  situation,  or  local  circumstances 
of  the  country,  or  have  been  set  up  by  the  authority  of 
an  arbitrary  chieftain  or  the  unaccountable  caprice  of  the 
multitude  I' 

As  to  the  sanction  of  moral  rules,  in  the  wide  sense  of 
the  term,  it  was  well  said  by  Locke  that  '  no  man  escapes 
the  punishment  of  their  censure  and  dislike  who  offends 
against  the  fashion  and  opinion  of  the  company  he  keeps, 
and  would   recommend  himself   to  it^.'    Such   rules    are 


'  Cf.  Kant,  Tugendlehre,  Werke,  vii.  p.  177.  Cf.  also  the  remarks  of 
Seneca:  'Quam  angnsta  innocentia  est  ad  legem  bonum  esse?  Quanto 
latius  officiorum  patet  quam  iuris  regula?  Quam  multa  pietas,  humanitas, 
liberalitas,  iustitia,  fides  exigunt,  quae  omnia  extra  publicas  tabulas 
sunt?'   De  Ira,  ii.  28. 

^  Mor.  Phil,  book  i.  ch.  5.  Cf.  Herodotus,  iii.  38;  Arist.  Eth.  Nic.  v.  7; 
Montaigne,  Essais,  i.  ch.  22;   Pascal,  Pens^es,  iii.  8. 

'  Human  Understanding,  book  ii.  §§  i- 12,  where  he  scarcely  does  justice 


30  LAWS   AS    RULES    OF   HUMAN   ACTION. 

CHAP.  III.  thus  by  no  means  without  their  appropriate  sanction. 
We  cannot  therefore,  with  Thomasius,  see  in  the  presence 
or  absence  of  compulsion  the  dividing  characteristic 
between  morality  and  Law\ 

Enough  has  perhaps  been  said  with  reference  to  moral 
rules  generally.  One  class  of  these  rules  has  however 
exercised  so  wide  an  mfluence,  and  is  so  intimately  con- 
nected with  our  more  immediate  subject,  as  to  demand 
a  more  extended  notice. 

The  law  of  That  portion  of  morality  which  supplies  the  more  im- 
portant  and  universal  rules  for  the  governance  of  the 
outward  acts  of  mankind  is  called  the  '  Law  of  Nature. ' 

This  is  a  plain  and,  it  is  submitted,  true  account  of 
a  subject  upon  which  a  vast  amount  of  mystical  writing 
has  been  expended.  Such  of  the  received  precepts  of 
morality  relating  to  overt  acts,  and  therefore  capable 
of  being  enforced  by  a  political  authority,  as  either  are 
enforced  by  such  authority  or  are  supposed  to  be  fit  so 
to  be  enforced,  are  called  'laws  of  Nature.'  They  are 
precepts  obedience  to  which,  whether  it  be  or  be  not  com- 
manded by  the  State,  is  insisted  upon  by  a  deep-rooted 
public  sentiment.  Resting  essentially  upon  public  senti- 
ment, they  are  rules  of  morality;  but  having  reference 
only  to  such  outward  actions  as  are  thought  fit  for  political 
enforcement,  they  form  only  one  class  of  such  rules. 
After  what  has  been  said  as  to  the  origin  and  authority 
of  moral  rules  in  general,  it  will  be  unnecessary  to  discuss 
at  length  the  origin  and  authority  of  such  moral  rules 
as  are  called  natural  laws.  Whatever  may  be  the  objective 
character  of  those  laws  ^,  whether  they  should  be  identified 

to  the  effects  produced  by  sympathy  with  the  sentiment  of  our  fellow- 
creatures. 

'  Fund.  I.  Nat.  ii.  c.  6.  §  3.  Cf.  Arist.  Eth.  Nic.  x.  9.  12,  b  5«  v6(jios 
hvayKaariK^v  e^ei  Sivafiiv. 

^  Whether  for  instance  it  be  more  true  to  say  with  Cicero,  de  Leg.  ii.  4. 


THE    LAW    OF    NATURE.  31 

with  the  will  of  God,  or  should  be  supposed  to  be  in  some 
sort  the  guides  even  of  that  will,  it  is  enough  for  the 
jurist  that  they  certainly  rest,  like  other  moral  rules,  upon 
the  support  of  public  sentiment. 

While  there  has  been  much  difference  of  opinion  as  to 
the  contents  of  the  Law  of  Nature,  the  existence  of  such 
a  law  has  been  very  generally  admitted. 

At  the  time  when  the  social  were  first  separated  from 
the  physical  sciences,  speculation  recognised  in  the  former 
nothing  but  what  is  variable  and  arbitrary.  Thus 
Democritus  taught  that  legal  institutions  were  of  human 
devising,  while  atoms  and  vacuum  exist  by  Nature  \ 
It  was  the  stock  sophistical  doctrine  that  moral  distinc- 
tions, especially  Justice,  are  the  creatures  of  law;  which 
is  itself  a  mere  compromise,  securing  each  man  against 
injury  on  condition  that  he  surrenders  the  luxury  of  ill- 
treating  his  neighbours  I  The  purely  conventional 
character  of  morality  is  also  the  conclusion  drawn  by 
Herodotus  from  the  contradictory  views  and  customs 
which  he  found  to  prevail  among  different  nations'. 

But  a  contrary  view  found  early  expression  in  literature. 
Sophocles  makes  Antigone  appeal  from  the  orders  of  King 
Kreon  to  the 

aypaTTTa   Kaxr<f>aXrj   6e(x>v 
vofjiifia  *. 

Aristotle  fully  recognises  the  existence  of  a  natural  as 
well  as  of  a  legal  Justice  ^    He  mentions  as  an  ordinary 

'Lex  vera  ratio  est  recta  summi  lovis,'  or  with  Horace,  Sat.  i.  3.  98, 
'Utilitas  iusti  prope  mater  et  aequi.' 

'   Hoir/Ta  Se  yo/iifia  fhai,  (pitrei  5e  arS/jLOvs  Koi  Kfv6v.    Diog.  Laert.  ix.  45. 

^  Tb  Ukuiov  is  a\\6Tpiov  ayadSv.  Plato,  de  Repub.  ii.  ad  init.;  cf.  Arist. 
Eth.  Xic.  V.  I.  17,  Pol.  iii.  9.  8;   Rousseau,  Contr.  Social,  ii.  c.  6. 

*  Herodot.  iii.  38.  '  J'ai  bien  peur  que  cette  nature  ne  soit  elle-meme 
qu'une  premiere  coutume,  comme  la  coutume  est  une  seconde  nature,' 
says  Pascal,  Pens^es,  iii.  19. 

*  '  Unwritten  and  steadfast  customs  of  the  Gods.'  Antig.  ver.  454;  cf. 
Oedip.  R.  ver.  838;  Xen.  Memor.  iv.  4.  19;   Plato,  Legg.  pp.  563,  793. 

ToD  Si  iroAiTUcov  SiKatov  rh  fxiv  <pv<TiK6v  fan.  rh  ht  vojulikov,  <l)V(TtKhi>  /xiy  rh 


32  LAWS  AS    RULES   OF    HUMAN   ACTION. 

device  of  rhetoric  the  distinction  which  may  be  drawn 
between  the  written  law,  and  'the  common  law'  which 
is  in  accordance  with  Nature  and  immutable  \ 

The  Stoics  were  in  the  habit  of  identifying  Nature  with 
Law  in  the  higher  sense,  and  of  opposing  both  of  these 
terms  to  Law  which  is  such  by  mere  human  appointment. 
'Justice,'  they  say,  'is  by  Nature  and  not  by  imposition V 
'It  proceeds  from  Zeus  and  the  common  Nature ^'  In 
a  passage  already  quoted,  Chrysippus  speaks  of  'the 
common  law,  which  is  the  right  reason,  pervading  all 
things,  identical  with  Zeus,  the  supreme  admmistrator 
of  the  Universe  ^' 

The  same  view  finds  expression  in  the  Roman  lawyers. 
'Law,'  says  Cicero,  'is  the  highest  reason,  implanted  in 
Nature,  which  commands  those  things  which  ought  to  be 
done  and  prohibits  the  reverse.'  'The  highest  law  was 
born  in  all  the  ages  before  any  law  was  written  or  State 
was  formed.'  '  We  are  by  Nature  inclined  to  love  mankind, 
which  is  the  foundation  of  law^'  'Law  did  not  then 
begin  to  be  when  it  was  put  into  writing,  but  when  it 
arose,  that  is  to  say  at  the  same  moment  with  the  mind 
of  GodV 


■wavraxov  riiv  airriiv  «X'"'  ^livo/i*!/,  Kol  oi)  rtf  hoKtiv  ^  fxfi,  vofiiKhv  8e  h  ^|  ipXV^ 
fiiv  oiiOiv  Siouf>(p(t  ovrus  tl  liWus,  Srav  8c  Ouvrai  8ia4>ep6t.  He  goes  on  to 
explain  this  statement,  and  to  refute  the  idea  that  everything  which  is 
^i;(rci  is  wholly  d/cfcr/roj'.  He  uses  avvB^Ktj  as  synonymous  with  vo/nKdv. 
Eth.  Nic.  V.  7. 

'  Rhet.  i.  16.  He  also  opposes  the  iSios  v6nos  to  that  which  is  Koiv6i  or 
Korii  <pvffiy,  ib.  14;  cf.  Demosth.  Aristocrat,  p.  639. 

2  Stob.  Eccl.  ii.  p.  184. 

*  Chrys.  apud  Plut.  de  Stoic.  Rep.  9.  Cf.  the  saying  of  Heracleitus: 
rptpoprai  yap  ndyres  01  avdpcirreioi  vdjuoi  vrb  evlis  tov  0(lov.  Frag.  91,  ed. 
Bywater. 

*  Chrys.  apud  Diog.  Laert.  vii.  88. 

*  De  Legib.  i.  6;  ib.  i.  15;  cf.  De  Inv.  ii.  52;  Rep.  (Mai)  iii.  22. 

'  De  Legib.  ii.  4;  cf.  the  distinction  between  'summa  lex'  and  'lex 
Bcripta,'  ib.  cc.  6.  15;  between  'lex  Naturae'  and  'civilis,'  De  Off.  iii. 
17;  between  'civilis  nexus'  and  'communis  lex  Naturae,'  Rep.  i.  17; 
between  '  summum  ius '  and '  ius  civile,'  ib.  v.  3;  and  between '  unlversum 
ius'  and  'ius  civile,'  De  Legib.  i.  4. 


THE   LAW   OF    NATURE.  33 

It  may  be  worth  while  to  add  a  few  instances  from  later    chap.  in. 
writers  of  the  terms  in  which  the  law  of  Nature  has  been 
spoken  of. 

Decretum  Gratiani :  '  lus  naturale  est  commune  omnium 
nationuni,  eo  quod  ubique  instinctu  naturae,  non  constitu- 
tione  aliqua,  habetur^' 

S.  Thomas  Aquinas:  ' Participatio  legis  aeternae  in 
rationali  creatura  lex  naturaUs  dicitur^.' 

Grotius  :  '  lus  naturale  est  dictatum  rectae  rationis,  indi- 
cans  actui  alicui,  ex  eius  convenientia  aut  disconvenientia 
cum  ipsa  Natura  rationali  ac  sociali,  inesse  moralem 
turpitudinem  aut  necessitatem  moralem,  ac  consequenter 
ab  auctore  Naturae,  Deo,  talem  actum  aut  vetari  aut 
praecipi  ^.' 

Hobbes:  'Reason  suggesteth  convenient  Articles  of 
Peace,  upon  which  men  may  be  drawn  to  agreement. 
These  Articles  are  they  which  otherwise  are  called  the 
Lawes  of  Nature*.' 

Jeremy  Taylor :  '  The  law  of  nature  is  the  universal  law 
of  the  world,  or  the  law  of  mankind,  concerning  common 
necessities,  to  which  we  are  incHned  by  nature,  invited 
by  consent,  prompted  by  reason,  but  is  bound  upon  us 
only  by  the  command  of  GodV 

Cumberland:  'Lex  Naturae  est  propositio  naturaliter 
cognita,  actiones  indicans  effectrices  communis  boni  ^' 

The  term  'Law  of  Nature,'  besides  the  sense  in  which  Special 
we  have  just  explained  it,  has  been  employed  in  a  wider  ^gj-^^^ 
and  also  in  a  more  restricted  sense. 

The  wider  is  that  of  the  well-known  '  ius  naturale '  of  The  wider 
Ulpian,  which  he  says  prevails  among  animals  as  well  as  ^^^• 
men,  regulating  the  nurture  of  the  young  and  the  union 
of  the  sexes  ^.    It  is  obvious  that  the  courses  of  action 

*  I  Dist.  c.  7.  "1.2.  q.  91.  art.  2. 

^  De  I.  Bell,  et  P.  i.  i.  10.  *  Leviathan,  p.  63. 

^  Diict.  Dub.  ii.  c.  I.  r.  I.  '  De  Lege  Nat.  v.  i. 
'  lust.  Inst.  i.  2. 

HOLLAND  D 


34  LAWS   AS    RULES    OF   HUMAN   ACTION. 

CHAP.  III.  mentioned  by  Ulpian  are  followed  in  pursuance,  not  of 
a  precept  addressed  to  a  rational  will,  which  alone  is 
properly  called  a  *law,'  but  rather  of  a  blind  instinct, 
reseml^ling  the  forces  which  sway  the  inanimate  world  \ 
Such  an  employment  of  the  term  is,  in  fact,  fully  as 
metaphorical  as  its  use  to  express  the  order  of  the  uni- 
verse. A  law  for  the  nurture  of  offspring  is  no  more 
intelligible  than  a  law  of  gravitation. 

It  is  in  pursuance  of  this  'law,'  which  is  supposed  to 
govern  the  relations  of  men  before  they  have  originated 
any  of  those  institutions  which  mark  their  superiority 
to  the  merely  animal  creation,  that  all  men  are  asserted  to 
be  equal.  '  lure  enim  naturali  ab  initio  omnes  homines 
liberi  nascebantur ' ;  which  is  equivalent  to  saying  that 
before  any  laws  were  in  existence,  no  differences  between 
man  and  man  were  recognised  by  law.  Ulpian's  'ius 
naturale '  is  therefore  a  merely  metaphorical  phrase,  leading 
to  consequences  which,  however  magniloquently  they  may 
be  expressed,  turn  out  upon  analysis  to  be  dangerous 
truisms.  All  legal  right  and  wrong  had  its  origin  after 
human  society  was  put  in  motion  and  began  to  reflect 
and  act.  To  talk  of  law  and  right  as  applied  to  mankind 
at  a  supposed  period  anterior  to  society  beginning  to  think 
and  act  is  a  contradiction  in  terms  ^. 
The  An  employment  of  the  term  'natural  law'  in  a  sense 

I13.ITO  WGF 

sense.  as   much  narrower    than   that  which  we    have    given  it 

as  Ulpian's  is  wider,  is  its  identification  with  the  'ius 
gentium.'  The  'ius  gentium,'  in  its  origin  a  system  of 
positive  law  enforced  among  the  Romans  and  the  races 
with  whom  they  were  brought  into  commercial  contact, 
was  conceived  of,  doubtless  as  early  as  the  second  cen- 
tury B.  c,  as  a  body  of    principles  which  are  found  in 

*  Hesiod,  Op.  et  Dies,  276. 

'  Yet  writers  are  not  wanting  to  assure  us  that  the  genesis  of  law  pre- 
ceded even  the  development  of  the  family.  Zocco-Rosa,  Principii  d'  unp 
Preistoria  del  Diritto,  1885,  p.  36. 


DEDUCTIONS    FROM    THE    DOCTRINE.  35 

the  laws  of  all  nations,  and  which  therefore  point  to  chap.  hi. 
a  similarity  in  the  needs  and  ideas  of  all  peoples  \  '  lus 
autem  gentium  omni  humano  generi  commune  est ;  nam 
usu  exigente  et  humanis  necessitatibus  gentes  humanae 
quaedam  sibi  constituerunt,  Bella  etenim  orta  sunt  et 
captivitates  secutae,  et  servitutes,  quae  sunt  naturali  iuri 
contrariae^.'  By  the  introduction  of  these  precepts  the 
narrow  and  strict  law  of  Rome  was  gradually  enriched 
and  expanded.  It  was  an  afterthought  to  give  them 
a  higher  authority  and  a  philosophical  significance  by 
identifying  them  with  the  'ius  naturale';  as  is  done 
even  by  Cicero*;  and  more  explicitly  by  Gains  when  he 
says  :  'Quod  vero  naturalis  ratio  inter  omnes  homines 
constituit,  id  apud  omnes  populos  peraeque  custoditur, 
vocaturque  ius  gentium,  quasi  quo  iure  omnes  gentes 
utuntur  \' 

Ulpian's  extravagantly  wide  application  of  the  term 
never  seems  to  have  gained  currency.  It  was,  on  the 
other  hand,  long  and  generally  used  in  the  restricted 
sense  of  an  equivalent  for  what  the  Romans  meant  by 
the  '  ius  gentium.' 

Its  suitable  and  convenient  use  in  the  sense  in  which 
it  was  employed  by  Aristotle  was  restored  by  such 
writers  as  Oldendorp,  Gentili,  and  Grotius. 

A  brief    notice    must    suffice   of    the   various    practical  Deduc- 
conclusions  which   have   been    drawn    from   the   doctrine  ^j^J^^J^^"" 
of  'ius  naturale.'  trine. 

I.  Acts   prohibited    by   positive   law,    but   not   by  the 


'  Cic.  de  Off.  iii.  69.  Cf.  Voigt,  Das  Ius  Naturale,  passim,  and  Prof. 
Nettleship,  Contributions  to  Latin  Lexicography,  pp.  500-510. 

^  lust.  Inst.  i.  2.  §  2.  '  Gentium  ius  .  .  .  ab  eo  enim  nominatum  est  .  .  . 
et  omnes  gentes  similiter  eo  sunt  usae;  quod  enim  honestum  et  iustum 
est  omnium  utilitati  convenit.'  Frag.  Vet.  I.  Cti.  Cf.  Cic.  de  Off.  iii.  17; 
Gai.  Inst.  iii.  93. 

*  *  Lege  naturae,  id  est  gentium,'  De  Off.  i.  23; '  In  re  consensio  omnium 
gentium  lex  Naturae  putanda  est,'  Tusc.  i.  13.  *  Inst.  i.  i. 

D2 


36  LAWS   AS    RULES    OF    HUMAN   ACTION. 

CHAP.  III.  so-called  natural  law,  are  said  to  be  '  mala  prohibita,' 
not  'mala  in  se.'  Thus  a  government  may  find  it  ex- 
pedient to  forbid  certain  acts,  such  as  the  planting  of 
tobacco*,  which  are  not  regarded  as  odious  by  the 
public  sentiment. 

2.  Positive  laws  have  been  said  to  be  invalid  when 
they  contradict  the  law  of  Nature.  So  Hooker,  para- 
phrasing S.  Thomas :  'Human  laws  are  measures  in 
respect  of  men  whose  motions  they  must  direct.  How- 
beit  such  measures  they  are  as  have  also  their  higher 
rules  to  be  measured  by:  which  rules  are  two,  the  law 
of  God,  and  the  law  of  nature.  So  that  laws  must  be 
made  according  to  the  general  law  of  nature,  and  without 
contradiction  to  any  positive  law  of  scripture ;  otherwise 
they  are  ill  made  ^.'  Grotius :  '  Humana  iura  multa  con- 
stituere  possunt  praeter  naturam,  contra  naturam  nihil  ^.' 
And  Blackstone  :  '  This  law  of  nature,  being  co-eval  with 
mankind  and  dictated  by  God  himself,  is  of  course 
superior  in  obligation  to  any  other.  It  is  binding  all 
over  the  globe  in  all  countries  and  at  all  times :  no 
human  laws  are  of  any  validity,  if  contrary  to  this ; 
and  such  of  them  as  are  valid  derive  all  their  force, 
and  all  their  authority,  mediately  or  immediately,  from 
their  original  ^' 


*  12  Ch.  II.  c.  34.  Cf.  the  lenient  view  which  has  been  taken  by 
the  Courts  of  evasions  of  the  revenue  laws,  e.  g.  Holman  v.  Johnson, 
Ck)wp.  341. 

»  Eccl.  Pol.  iii.  c.  9.  »  De  I.  B.  et  P.  ii.  3.  6. 

*  Comm.  Introd.  p.  43.  Cf.  Cic.  de  Legib.  ii.  4;  Suarez,  de  Lege  et 
Deo,  ii.  14;  Raleigh,  Works,  iii;  Coke,  I.  Inst.  11,  183,  197;  7  Rep.  14; 
Locke,  Civ.  Gov.  11.  Lord  Coke  in  Bonham's  case,  8  Rep.  1 18,  says  that 
'  when  an  Act  of  Parliament  is  against  Common  Right  and  Reason,  or 
repugnant,  or  impossible  to  be  performed,  the  Common  law  will  control 
it,  and  adjudge  such  Act  to  be  void,'  &c.;  and  Lord  Hobart,  'even 
an  Act  of  Parliament,  made  against  natural  equity,  as  to  make  a  man 
a  judge  in  his  own  case,  is  void  in  itself,  for  iura  naturae  sunt  immutahilia, 
they  areleges  legum.'  Dayv.Savage,Hob.87.  These  dicta,  though  approved 
of  by  Lord  Holt  in  London  v.  Wood,  12  Mod.  687,  appear  never  to  have 
been  followed  in  practice;  and  see  now  Lee  v.  Bude,  &c.,  Ry.  Co.,  L.  R. 


DEDUCTIONS    FROM    THE    DOCTRINE.  37 

3.  Natural  law,  or  natural  equity,  has  been  often  called    cil\p.  hi. 
in  to  justify  a  departure  from  the  strict  rules  of  positive 

law. 

With  the  changing  ideas  of  society  cases  of  course  often 
occurred  when  the  law  of  the  State  was  found  to  be 
in  opposition  to  the  views  of  equity  entertained  by  the 
people,  or  by  leading  minds  among  them.  The  opposition 
would  be  said  in  modern  language  to  be  between  law 
and  moraUty.  But  law  and  morality  in  early  times  were 
not  conceived  of  as  distinct.  The  contrast  was  therefore 
treated  as  existing  between  a  higher  and  a  lower  kind  of 
law,  the  written  law  which  may  easily  be  superseded,  and 
the  unwritten  but  immutable  law  which  is  in  accordance 
with  Nature. 

And  this  way  of  talking  continues  to  be  practised  to 
the  present  day.  Long  after  the  boundary  between  law 
and  moraUty  had  been  clearly  perceived,  functionaries 
who  were  in  the  habit  of  altering  the  law  without  having 
authority  to  legislate  found  it  convenient  to  disguise  the 
fact  that  they  were  appealing  from  law  to  morality,  by 
asserting  that  they  were  merely  administering  the  law 
of  Nature  instead  of  law  positive. 

4.  In  cases  for  which  the  law  makes  no  provision, 
the  Courts  are  sometimes  expressly  authorised  to  decide 
in  accordance  with  the  principles  of  natural  law.  This 
is  so,  for  instance,  in  the  Austrian^  and  German^  Civil 
Codes,  and  the  Commissioners  for  preparing  a  body  of 
substantive  law  for  India  recommend  that  the  judges 
should  decide  such  cases  '  in  the  manner  they  deem  most 


6  C.  P.  582.  Cf.  a  learned  note  by  Gray  C.  J.  on  the  American  cases  in 
point,  in  Paxton's  Case,  Quincy,  Mass.,  51. 

'  'Nach  den  natiirlichen  Grundsatzen,'  §  7. 

^  In  which  the  phrases  'Treu  und  Glauben,'  'gute  Sitten,'  'billiges 
Ermessen,'  are  of  frequent  recurrence.  See  R.  Stammler,  Die  Lehre  von 
dem  Richtigen  Recht,  1902.  For  a  discussion  of  the  words  'd'apres  les 
principes  g^n^raux  du  droit  et  I'^quit^,'  in  the  Congo  Ordonnance  of  1 886, 
see  Stokes  v.  Stokes,  L.  J.  67  P.  D.  &  A.  55. 


38  LAWS    AS    RULES    OF   HUMAN   ACTION. 

:;hap.  ni.  consistent  with  the  principles  of  justice,  equity,  and  good 
conscience'.'  The  draft  Swiss  Civil  Code  (1905)  provides 
that,  in  default  of  express  enactment,  a  judge  is  to  decide 
in  accordance  with  '  le  droit  coutumier,'  or,  in  default  of 
such  law, '  suivant  la  doctrine  et  la  jurisprudence.'  Failing 
all  these  sources,  he  is  to  apply  such  rules  as  he  would 
lay  down  were  he  a  legislator^. 

5.  The  exceptional  rules  of  the  'Law  merchant'  have 
been  explained  as  derived  from  natural  law.  Thus  it  is 
laid  down  in  the  year-book  of  13  Ed.  IV  that  jurisdiction 
over  foreign  merchants  is  to  be  exercised  'secundum 
legem  naturae  que  est  appelle  per  ascuns  ley  marchant, 
que  est  ley  universal  par  tout  le  monde ' .' 

6.  When  English  Courts  refuse  recognition  to  a  foreign 
judgment  as  being  'opposed  to  natural  justice,' the  objec- 
tion is  limited  to  the  procedure  by  which  the  judgment 
was  obtained*.  This  ground  of  objection,  as  stated  in 
the  Indian  Code  of  Civil  Procedure,  would  appear  to  be 
of  wider  application  ^ 

7.  The  law  of  Nature  is  the  foundation,  or  rather 
the  scaffolding,  upon  which  the  modern  science  of  Inter- 
national Law  was  built  up  by  Gentili  and  Grotius.  The 
appeals  to  'natural  law'  in  modern  diplomacy,  perhaps 
moat  frequently  made  on  behalf  of  the  United  States, 
have  been  httle  more  than  rhetorical*. 


*  First  Report,  p.  9;  Second  Report,  p.  10.  Sir  Fitzjames  Stephen 
seenis  to  have  maintained  that  such  attractive  phrases  mean  '  Httle  more 
than  an  imperfect  understanding  of  imperfect  collections  of  not  very 
recent  editions  of  English  text-books.'   Stokes,  Anglo-Indian  Codes,  ii. 

P-  "59- 

'  Art.  I. 

'  Cited  by  Sir  F.  Pollock,  Journal  of  Soc.  Comp.  Legislation,  1900, 
p.  431.   Cf.  infra,  p.  59  n. 

*  Schibsby  v.  Westenholz,  L.  R.  6  Q.  B.  155. 

*  '  No  foreign  judgment  shall  operate  as  a  bar,  if  it  is,  in  the  opinion 
of  the  Court  before  which  it  is  produced,  contrary  to  natural  justice.' 
Art.  14  (c). 

*  The  Second  Armed  Neutrality  (Art.  3)  professed  to  safeguard  '  lee 


BY   A   DETERMINATE   AUTHORITY.  39 

II.  In    contrast  with    the    species    of    rules  which   we    chap.  hi. 

have  just  been  considering,  are  rules  set  by  a  determinate  ^"^^  j 

authority.  by  deter- 

minate 
Among  such  rules  would  no  doubt  be  mcluded  rules  authority. 

imposed,  or  thought    to  be  imposed,  upon  mankind    by  Divine 

a    God    or    Gods.    Direct    revelations    of    the  will    of    a    ^^' 

supernatural  power,  or  such  indirect  intimations  of  that 

will  as  each  man  may  find  in  his  own  conscience,  have 

alike  been    described    as    'laws  of    God\'    It    has    been 

believed    that  infractions  of  either  class  of    God's  laws, 

generally    known    as    sins,    are    sooner    or    later    to    be 

redressed;  whether,  as  among  the  Jews,  the  redress  is 

to  take  the  shape  of  temporal  reward  and  punishment,  or, 

as  under  the  Christian  dispensation,  the  readjustment  of 

rehgious  good  and  evil    is  postponed    to  a  future  state 

of  existence.    The  laws  of  God  thus  resemble  in  almost 

every   point,   other   than   the   essential   points   of   source 

and  sanction,  those  laws  which  we  shall  presently  admit 

to    be    properly    so    called.     It    is    however    just    this 

difference  of  source  and  sanction  which  withdraws  them 

from  the  cognisance  of  Jurisprudence.    Laws  the  author 

and    upholder  of  which   is   superhuman    are   withm    the 

province  of  quite  a  different  science,  and  the  jurist  may 


principes  g^n^raux  du  droit  natural,  dent  la  liberty  du  commerce  et  de 
la  navigation,  de  meme  que  les  droits  des  peuples  neutres,  sont  une  con- 
sequence directe.'  Martens,  Rec,  2me  ^d.,  vii.  p.  175.  Mr.  J.  Q.  Adams, 
with  reference  to  the  claim  of  the  United  States  to  the  Continent  of 
North  America,  writes  in  his  diary,  Nov.  16,  1819:  —  'From  the  time 
when  we  became  an  independent  people,  it  was  as  much  a  law  of  Nature 
that  this  should  become  our  pretension  as  that  the  Mississippi  should 
flow  to  the  sea.'  Memoirs,  iv.  p.  438.  At  the  Behring's  Sea  Arbitration, 
Mr.  Carter,  arguendo,  went  so  far  as  to  speak  of  the  law  of  Nature  as  '  the 
true  source  upon  which  the  whole  system  of  the  law  of  Nations  rests,' 
p.  289.  Upon  this  statement,  see  the  criticisms  of  Sir  C.  Russell,  pp.  729, 
104 1. 

*  Austin  introduces  a  new  ambiguity  into  the  term  '  law  of  God,'  by 
applying  it  complimentarily  to  the  conclusions  arrived  at  by  the  utili- 
tarian pliilosophy  as  to  the  mode  of  producing  the  greatest  happiness 
of  the  greatest  number. 


40  LAWS   AS   RULES   OF    HUMAN    ACTION. 

CHAP. III.     be  warned,  in  the  quaint  words  of  Thomasius,  'not  to 
put  his  sickle  into  the  field  of  dread  Theology  \' 
Human  Leaving  therefore  on  one  side  those  rules  which  are 

set  by  God,  we  come  to  those  which  are  set  by  a  definite 
human  authority,  and  here  we  draw  the  final  distinction 
between  the  case  when  such  authority  is,  and  the  case 
when  it  is  not,  a  sovereign  political  authority.  Rules  set 
by  such  an  authority  are  alone  properly  called  'laws.' 

By  a  successive  narrowing  of  the  rules  for  human 
action,  we  have  at  length  arrived  at  such  of  those  rules 
as  are  laws.  A  law,  in  the  proper  sense  of  the  term,  is 
therefore  a  general  rule  of  human  action,  taking  cogni- 
sance only  of  external  acts,  enforced  by  a  determinate 
authority,  which  authority  is  human,  and,  among  human 
authorities,  is  that  which  is  paramount  in  a  political 
society  ^. 
Definition  More  briefly,  a  general  rule  of  external  human  action 
enforced  by  a  sovereign  political  authority. 

All  other  rules  for  the  guidance  of  human  action  are 
called  laws  merely  by  analogy;  and  any  propositions 
which  are  not  rules  for  human  action  are  called  laws 
by  metaphor  only. 

'  '  Ne  falcem  hie  immittamus  in  campum  venerandae  Theologiae ' ; 
Inst.  lur.  Div.,  lib.  i.  c.  i.  §  163.  Elsewhere  the  same  author  doubts 
the  truth  of  the  conception  of  God  as  a  law-giver.  The  wise  man,  he 
says,  sees  in  God  rather  the  teacher  of  a  law  of  Nature,  or  a  Father; 
Fund.  I.  Nat.  et  Gent.  c.  5. 

*  It  should  hardly  be  necessary  to  remark  that  the  legal  character  of 
such  a  rule  is  not  affected  by  the  circumstance  that  it  may  occasionally 
fail  to  be  enforced,  neither  does  promulgation  seem  to  be  of  the  essence 
of  a  law.  In  Japan,  for  instance,  down  to  the  year  1870,  laws  were 
addressed  only  to  the  officials  whose  duty  it  would  be  to  administer  them 
in  accordance  with  the  Chinese  maxim  '  let  the  people  abide  by,  but  not 
be  apprised  of,  the  law.'  N.  Hozumi  on  the  New  Japanese  Civil  Code,  1904. 


CHAPTER    IV. 


POSITIVE    LAW. 

A  LAW,  in  the  sense  in  which  that  term  is  employed  Positive 
in  Jurisprudence,  is  enforced  by  a  sovereign  poUtical 
authority.  It  is  thus  distinguished  not  only  from  all 
rules  which,  like  the  principles  of  morality  and  the 
so-called  laws  of  honour  and  of  fashion,  are  enforced 
by  an  indeterminate  authority,  but  also  from  all  rules 
enforced  by  a  determinate  authority,  which  is  either, 
on  the  one  hand,  superhuman,  or,  on  the  other  hand, 
politically  subordinate. 

In  order  to  emphasise  the  fact  that  laws,  in  the  strict 
sense  of  the  term,  are  thus  authoritatively  imposed,  they 
are  described  as  'positive'  laws\ 

It  is  to  such  laws  that  the  following  definitions  willDefini- 
be  found  to  have  reference:  — 

TovTo  hm  vo/ios,  o)  Travras  avOpwirovi  irpocrriKU  viidtaOai 
ha     TToXXd,    Koi    fiaXiara     on    iras     iarl     v6fio<i    tvprjfia    fiiv    koI 


•  'Positive  are  those  which  have  not  been  from  eternity;  but  have 
been  made  I>awes  by  the  Will  of  those  that  have  had  the  Soveraign 
Power  over  others.'  Hobbes,  Leviathan,  p.  148.  '  Positiva '  are  opposed 
to  '  naturalia'  by  Aulus  Gellius,  as  dfcrfi  to  <pi<Tfi:  '  Naturalia  magis  quam 
arbitraria.'     Noctes  Att.  x.  4. 


42  POSITIVE    LAW. 

CHAP.  IV.  ouipov  6eov,  Soy/xa  Sc  a.v6p(t)7ru)v  (ftpovifKov,  (TravopOot/jia  Sc 
TtDV  eKovaioiv  Kai  dKov(TL(DV  dfiaprrffiaLTOiv,  ttoAccds  Se  (TvvdrJKrj 
Koivrj,      Ka6'     rjv     airaa-L     irpotrrjKiL     ^^f       tois     Iv     rrj      ttoAci.  — 

Demosthenes  *. 

Oo-a  y'  av  to  Kparovv  rrj^    ttoAcws  PovXevcrdfievov  a  xpt]   iroulv 
ypdxlq],  vo/xos  KoAciTcu.  —  Xenoplion  ^. 

O    vo/jLO^  iari  \6yo<s    wpi(rpevo<;,    Ka6'  ofwXoyiav    kolvtjv  TroXcw?, 
fji-qvv(siv  TTtos  hii  Trpdrruv   CKacrra.  —  Anaximenes  ^ 

'Lex  est  generale  iussum  populi  aut  plebis,  rogante 
magistratu.'  —  Atteius  Capito\ 

*  Lex  est  commune  praeceptum,  virorum  prudentium  con- 
sultum,  delictorum  quae  sponte  vel  ignorantia  contrahuntur 
coercitio,  communis  reipublicae  sponsio.'  —  Papinianus  ^ 

'The  speech  of  him  who  by  right  commands  somewhat 
to  be  done  or  omitted.'  —  Hobbes^ 

'Voluntas  superioris  quatenus  libertatem  coarctat  lex 
dicitur.'  —  Thomasius  ^ 

'La  notion  exacte  du  nom  de  Droit  renferme  toujours 
ridee  d'une  puissance  supreme  qui  puisse  contraindre 
les  hommes  a  s'y  soumettre.'  —  D'Aguesseau^ 


*  'This  is  Law,  to  which  all  men  ought  to  yield  obedience  for  many 
reasons,  and  especially  because  every  law  is  a  discovery  and  gift  of  God, 
and  at  the  same  time  a  decision  of  wise  men,  and  a  righting  of  trans- 
gressions, both  voluntary  and  involuntary,  and  the  common  covenant 
of  a  State,  in  accordance  with  which  it  beseems  all  men  in  the  State 
to  lead  their  lives.'  Adv.  Aristogeit.  (p.  774);  Dig.  i.  3.  2.  Cf.  the 
descriptions  of  y6nos  as  S6yna  ir6\€o>s,  S6^a  iroKinicfi,  in  Plato's  Minos, 
p.  314  c. 

'  'Whatsoever  the  ruling  part  of  the  State,  after  deliberating  as  to 
what  ought  to  be  done,  shall  enact,  is  called  a  law.'    Mem.  i.  c.  2.  43. 

'  '  Law  is  a  definite  proposition,  in  pursuance  of  a  common  agreement 
of  a  State,  intimating  how  everything  should  be  done.'  Arist.  Rhet.  ad 
Alex.  c.  I. 

*  Apud  A.  Gell.  x.  c.  20.  "     .  *  Dig.  i.  3.  3. 

*  Works,  ii.  p.  49;   cf.  iii.  p.  251.  ^  lur.  Div.  i.  84. 
'  Instructions  sur  les  Etudes,  &c.,  1716,  CEuvres,  i.  p.  269. 


DEFINITIONS.  43 

*  A  portion  of  discourse  by  which  expression   is  given     chap.  rv. 
to    an    extensively  applying    and   permanently    enduring 
act  or  state  of  the  will,  of  a  person  or  persons  in  rela- 
tion to  others,  in   relation  to  whom  he  is,  or  they  are, 
in  a  state  of  superiority.'  —  Bentham\ 

'Das  positive  Recht  durch  die  Sprache  verkorpert, 
und  mit  absoluter  Macht  versehen,  heisst  das  Gesetz.'  — 
Savigny  ^ 

*Die  von  der  hbchsten  Staatsgewalt  aufgestellten  ob- 
jectiven  Rechtssatze '  —  Bruns  ^. 

'Der  Inbegriff  der  in  einem  Staate  geltenden  Zwangs- 
normen.'  —  Ihering  *. 

'Die  durch  den  allgemeinen  Willen  aufrecht  erhaltene 
Ordnung  der  Lebensverhaltnisse.' — Dernburg^ 

Most  of  the  terms  employed  in  our  definition  of  posi- 
tive law  have  already  been  sufiiciently  discussed.  It 
remains  however  to  explain  what  is  meant  by  'a  sove- 
reign political  authority.' 

A    'People'    is     a    large     number     of    human    beings, People, 
united  together  by  a   common  language,  and  by   similar 
customs    and    opinions,   resulting    usually  from    common 
ancestry,  religion,  and  historical  circumstances. 


'  Works,  iii.  p.  233. 

^  '  Positive  Right,  embodied  in  language,  and  invested  with  absolute 
power,  is  called  the  Law.'    System,  i.  p.  39. 

'  '  The  objective  maxims  of  Right  which  are  set  forth  by  the  highest 
State  authority.'   Apud  Holtzendorff,  Encyclopadie,  i.  p.  258. 

*  '  The  totality  of  the  compulsory  rules  which  prevail  in  a  State.'  Der 
Zweck  im  Recht,  i.  p.  318.  Without  the  State,  says  Puchta,  '  das  Recht 
nur  ein  unvollstandiges  Daseyn  hatte.'  Without  it,  'der  gemeinsame 
Wille,  auf  dem  das  Recht  beruht,  mehr  ein  Wunsch,  als  ein  wirklicher, 
kraftiger  Wille  seyn  wiirde.'   Inst.  i.  §  11. 

*  '  That  ordering  of  the  relations  of  life  which  is  upheld  by  the  general 
will.'    Lehrbuch  des  Preuss.  Privatrechts,  §  19. 


44  POSITIVE    LAW. 

CHAP.  TV.  A  State '  is  a  numerous  assemblage  of  human  beings  \ 
State.  generally  occupying  a    certain    territory,  amongst  whom 

the  will  of  the  majority,  or  of  an  ascertainable  class  of 
persons,  is  by  the  strength  of  such  a  majority,  or  class, 
made  to  prevail  against  any  of  their  number  who 
oppose  it. 

A  State  may  be  coextensive  with  one  People  ^  as  is 
now  the  case  in  France,  or  may  embrace  several,  as  is 
the  case  with  Austria.  One  People  may  enter  into  the 
composition  of  several  States,  as  do  the  Poles  and  the 
Jews. 

A  People,  it  is  truly  said,  is  a  natural  unit,  as  con- 
trasted with  a  State  which  is  an  artificial  unit^  There 
must  doubtless  have  been  Peoples  before  there  were 
States;  that  is  to  say,  there  must  have  been  groups  of 
human  beings  united  by  similarity  of  language,  cus- 
toms, and  opinions,  before  there  arose  amongst  them  an 
organisation  for  enforcing  the  opinions  of  the  majority, 
or  those  of  a  government  acquiesced  in  by  a  majority, 
upon  an  unwilling  minority. 

Although  scarcely  any  traces  remain  in  history  of  the 
transformation  of  a  People  into  a  State,  it  is  impossible 
to  affirm,  with  Savigny,  that  a  People,  which  he  calls 
*an  invisible  natural  whole,'  never  exists  as  such;  never, 
that  is  to  say,  without  'its  bodily  form'  the  State ^ 
Aristotle  speaks  of  the  Arcadians  as  remaining  an  «^os 
till,  by  the  founding  of  Megalopohs,  they  become  a 
TToAis^.      Nor    can  we    follow  Savigny  in    regarding    the 


'  Aristotle,  Eth.  Nic.  ix.  lo.  3,  denies  that  a  State  can  be  composed  of 
only  ten  persons,  or  that  100,000  persons  can  be  comprised  in  a  single 
State.   Cf.  Id.  Pol.  vii.  4;   Plato,  Legg.  p.  737. 

^  According  to  the  extreme  advocates  of  the  '  doctrine  of  Nationality,' 
especially  in  Italy,  this  is  the  only  perfect  and  legitimate  State:  e.  g. 
Mancini,  Delia  nazionalit{\  come  fondamento  del  diritto  delle  genti  (1851). 
Prolusioni,  Napoli,  1873. 

'  Savigny,  System,  i.  p.  22. 

*  lb.  p.  22.  '  Pol.  ii.  2.  3. 


DEFINITIONS   OF  A   STATE.  45 

production  of  the  State  as  the  highest  stage  in  the  pro-    chap.  iv. 
creation  of  Law\    Morality  may  precede,  but  Law  must 
follow,  the  organisation  of  a  political  society. 
Of  such  a  society  the  following  definitions  have  beenDefini- 

.  .  .    ,  tions  of 

given  at  various  periods: —  a  State. 

'H  8'  £/c  TrXetdi'wv  kw/iwv  koivwvul  tcXcios  TrdXts  ^S»/> 
Trdcrrjs  t^ovaa  Trcpas  r^s  aurapKctas,  ws  cttos  ihreLv,  yivofievr] 
fiiv  ovv  Tov  ^rp/  iV€K€v,  ovcra  8k  tov  €V  ^rjv Aristotle  ^ 

'Respublica  est  coetus  multitudinis,  iuris  consensu  et 
utilitatis  comraunione  sociatus.'  —  Cicero  ^ 

'Civitas  nihil  aliud  est  quam  hominum  multitudo, 
aUquo  societatis  vinculo  colligata.' —  S.  Augustine  *. 

'Respublica  est  familiarum  rerumque  inter  ipsas  com- 
munium  summa  potestate  ac  ratione  moderata  multi- 
tudo.'  —  Bodinus  ^ 

'Civitas  est  coetus  perfectus  liberorum  hominum,  iuris 
fruendi  et  communis  utilitatis  causa  sociatus.'  —  Grotius '. 

'The  Common-wealth  is  one  Person,  of  whose  Acts  a 
great  multitude,  by  mutuall  Covenants,  one  with  another, 
have  made  themselves  every  one  the  Author,  to  the  end 
he  may  use  the  strength  and  means  of  them  all,  as 
he  shall  think  expedient,  for  their  Peace  and  Common 
Defence.'  —  Hobbes ''. 

'Societas  hominum  communis  boni  coniunctis  viribus 
promo vendi  causa  contracta  civitas  est.' — Wolff*. 


'  'Die  hochste  Stufe  der  Rechtserzeugung.'  System,  i.  p.  22;  cf .  Liv. 
Hist.  i.  c.  8. 

*  '  The  perfect  community  which  arises  from  several  villages  is  already 
a  City,  which  achieves,  so  to  say,  the  fulness  of  complete  self-sufficingness, 
brought  into  being  by  the  bare  needs  of  life,  but  finding  its  true  object  in 
the  promotion  of  a  noble  life.'   Pol.  i.  2.  8. 

'  De  Rep.  i.  25.  *  De  Civ.  Dei,  xv.  c.  8. 

«  De  Rep.  i.  i.  'LB.  ct  P.  i.  c.  i.  14. 

'  Leviathan,  p.  88.  *  Jus  Gent.  Prol.  §  9. 


46  POSITIVE   LAW. 

CHAP.  IV.  'A  State  is  a  body  of  free  persons,  united  together  for 
the  common  benefit,  to  enjoy  peaceably  what  is  their  own, 
and  to  do  justice  to  others.' — Supreme  Court,  U.  S.* 

'Der  Staat  ist  die  politisch  organisirte  Volksperson 
eines  bestimmten  Landes.'  —  Bluntschli^ 

'Der  Staat  ist  die  Form  der  geregelten  und  gesich- 
erten  AusUbung  der  socialen  Zwangsgewalt.'  —  Ihering  ^. 

It  would  be  rather  within  the  scope  of  a  professed 
work  upon  International  Law  than  of  a  treatise  upon 
Jurisprudence  to  explain  more  fully  the  characteristics 
of  a  true  State,  and  to  show  how  it  dififers  from  other 
societies  which  in  some  respects  resemble  it:  as,  for 
instance,  the  Catholic  Church;  a  great  trading  cor- 
poration, such  as  the  East  India  Company;  a  great 
and  permanent  league,  such  as  that  of  the  Hanse  towns; 
nomad  races;  rebels  and  pirates. 

The  origin  The  origin  of  States  has  been  a  favourite  subject  of 
speculation.  To  the  Greeks  the  organised  city  govern- 
ment in  which  they  delighted  seemed  the  result  of 
superhuman  wisdom.  It  was  a  commonplace  with  their 
earlier  poets  and  philosophers  to  ascribe  a  divine  origin 
to  States  and  to  legislation.  'Every  law,'  says  Demo- 
sthenes, 'is  a  gift  of  God,  and  a  decision  of  sages ^' 

Later  speculators,  not  content  to  veil  their  ignorance 
under  a  pious  allegory,  have  explained  the  rise  of  poli- 
tical society  by  the  hypothesis  of  an  'original  contract,' 
the  covenants  of  which  they  have  set  out  with  vast,  if 
misplaced,  ingenuity.    The  hypothesis  is  clearly,  though 


*  Chisholm  v.  Georgia,  2  Dallas,  456. 

*  '  The  State  is  the  politically  organised  impersonation  of  the  People  of 
a  given  country.'    Die  Lehre  vom  modernen  Staat,  i.  p.  24. 

^  '  The  State  is  the  form  of  the  regulated  and  assured  exercise  of  the 
compulsory  force  of  Society.'    Der  Zweck  im  Recht,  i.  p.  307. 

*  Adv.  Aristogeit.  i.  (p.  774). 


SOVEREIGNTY.  47 

by  no  means  for  the  first  time,  stated  by  Grotius  in  the  chap.  iv. 
following  passage:  'Qui  se  coetui  alicui  aggregaverant, 
aut  homini  hominibusque  subiecerant,  hi  aut  expresse 
promiserant,  aut  ex  negotii  natura  tacite  promisisse 
clebebant  intelligi,  secuturos  se  id  quod  aut  coetus  pars 
maior,  aut  hi  quibus  delata  potestas  erat,  constituis- 
sent  \' 

Even  were  the  theory  of  an  original  contract  within 
the  scope  of  the  present  treatise,  it  would  be  unnecessary 
to  repeat  here  the  arguments  by  which  its  untenableness 
has  been  almost  superfluously  demonstrated.  Jurispru- 
dence is  more  concerned  with  thfe  distinction  which  we 
are  about  to  explain. 

Every  state  is  divisible  into  two  parts,  one   of  which  Sove- 
is  sovereign  ^  the  other  subject.  reign  y. 

The  sovereign  part,  called  by  Bodin  *maiestas,'  is  de- 
fined by  him  as  'summa  in  cives  ac  subditos  legibusque 
soluta  potestas  ^'  Grotius  calls  it  'summa  potestas,' 
which  he  defines  as  being  'ilia  cuius  actus  alterius  iuri 
non  subsunt,  ita  ut  alterius  voluntatis  humanae  arbitrio 
irriti  possint  reddi*';  and  so  Hobbes  defines  what  he 
is  pleased  to  call  a  '  City '  as  '  one  person,  whose  will, 
by  the  compact  of  many  men,  is  to  be  received  for  the 
will  of  them  all;  so  as  he  may  use  all  the  power  and 
faculties  of  each  particular  person  to  the  maintenance 
of  peace  and  for  common  defence  ^' 

The  sovereignty  of  the  ruling  part  has  two  aspects.    It 


'  I.  B.  et  P.  Proleg.  15;  so  Hooker,  Eccl.  Pol.  i.  c.  10;  Locke,  Civ.  Gov. 
i.  c.  viii.  99;  Rousseau,  Contrat  Social,  i.  c.  6.  The  Sophists  taught  that 
Law  originates  in  a  bargain,  /iV  aSiKuv  fi-fir'  a8iKe?(r0ai,  Plato,  Rep.  p.  359. 
Cf.  Arist.  Pol.  iii.  9.  8,  6  vSfios  (rvvOi)ia). 

^  The  term  seems  only  to  have  come  into  use  in  this  sense  in  the  time 
of  Louis  XIV.    It  is  used  by  Hobbes,  Leviathan,  Pt.  ii.  c.  17. 

^  De  Rep.  i.  8.  He  continues:  'quamGraeci  i.Kpav  i^ovviav,  mplav apxhi'f 
Kipiov  TToXlTfvua,  Itali  segnoriam  appellant.' 

*  I.  B.  et  P.  i.  c.  3.  7. 

*  The  Philosophical  Elements  of  a  True  Citizen,  c.  5,  Works,  ii.  p.  69. 


48 


POSITIVE    LAW. 


CHAP.  IV.  is  *  external,'  as  independent  of  all  control  from  without ; 
'internal,'  as  paramount  over  all  action  within.  Austin 
expresses  this  its  double  character  by  saying  that  a 
sovereign  power  is  not  in  a  habit  of  obedience  to  any 
determinate  human  superior,  while  it  is  itself  the  deter- 
minate and  common  superior  to  which  the  bulk  of  a 
subject  society  is  in  the  habit  of  obedience  \ 

With  reference  to  each  kind  of  sovereignty,  questions 
arise    the    nature    of    which    must    be    briefly    indicated. 

External.  External  sovereignty,  without  the  possession  of  which 
no  State  is  qualified  for  membership  of  the  family  of 
Nations,  is  enjoyed  most  obviously  by  what  is  techni- 
cally known  as  a  '  Simple  State,'  i  e.  by  one  which 
is  'not  bound  in  a  permanent  manner  to  any  foreign 
political  body.' 

States  which  are  not  '  simple '  are  members  of  a  '  System 
of  States,'  in  which  they  are  combined  upon  equal  or 
upon  unequal  terms.  In  the  former  case  they  compose 
an  'Incorporate  Union,'  such  as  is  the  United  Kingdom 
of  Great  Britain  and  Ireland,  or  an  'fitat  federatif,'  or 
'  Bundesstaat,'  such  as  are  the  United  States  of  America, 
the  Swiss  Confederation,  or  the  German  Empire.  In  the 
latter  case  the  States  occupying  the  inferior  position  are 
known  as  ' mi-souverains,'  and  may  be  'protected'  like 
the  Republics  of  Andorre  and  San-Marino,  or  'under 
suzerainty,'  as  are  Bulgaria  and  Egypt. 

When  the  component  states  are  equally  united,  their 
external  sovereignty  resides  in  no  one  of  them,  but  in 
the  government  which  results  from  their  combination. 
The  external  sovereignty  of  a  system  of  unequally 
united  states  is  to  be  looked  for  usually  in  the  State 
which  is  suzerain  or  protector  of  the  others. 

Internal.  The  questions  which  arise  with   reference  to  internal 

sovereignty  relate  to  the  proportion  borne  by  the  sove- 


'  Jurisprudence,  i.  p.  171- 


SOVEREIGNTY.  49 

reign  part  of  the  State  to  the  subject  part ;  in  other 
words,  to  forms  of  government.  These  were  analysed, 
with  reference  to  simple  states,  by  the  Greek  philosophers 
in  a  way  which  left  little  to  be  desired.  The  power  may 
be  confided  to  all  members  of  the  State  who  are  not 
under  some  disability  on  account  of  age,  sex,  or  other- 
wise ;  or  it  may  be  restricted  to  one  or  more  of  the 
members.  In  the  former  case,  the  form  of  polity  is 
a  democracy.  In  the  latter,  it  is  an  aristocracy  or  a 
monarchy,  as  the  case  may  be.  Questions  as  to  the  dis- 
tribution of  powers  in  compound  States,  and  especially 
in  federal  governments,  have  only  of  late  years  received 
an  adequate  treatment*. 

Whether  the  ruling  power  be  as  widely  diffused  as 
possible,  or  be  concentrated  in  the  hands  of  a  despot, 
makes  but  little  difference  for  the  purposes  of  our  present 
inquiry.  It  is  by  the  sovereign,  be  that  sovereign  one 
individual  or  the  aggregate  of  many  individuals,  that  all 
law  is  enforced.  'The  Lawes  of  Nature,'  says  Hobbes, 
'are  not  properly  Lawes,  but  qualities  that  dispose  men 
to  peace,  and  to  obedience.  When  a  Common-wealth 
is  once  settled,  then  are  they  actually  Lawes,  and  not 
before  ;  as  being  then  the  commands  of  the  Common- 
wealth ^'  In  the  words  of  an  eminent  living  jurist : 
'  Das  Recht  existirt  erst  vermoge  der  Sanction  der  Rechts- 
gemeinschaft  des  einzelnen  Staates^' 


*  For  a  masterly  analysis  of  the  structure  of  a  '  Federal  Government,' 
see  Professor  Dicey 's  Law  of  the  Constitution,  1886;  and  for  a  detailed 
examination  of  the  questions  to  which  the  actual  working  of  the  greatest 
experiment  in  this  form  of  government  has  given  rise,  Mr.  Bryce's 
American  Commonwealth,  1888.  Cf.  Essays  vi  and  viii,  in  his  Studies 
in  History  and  Jurisprudence,  1901. 

*  Leviathan,  p.  138. 

'  '  Law  first  exists  through  the  sanction  afforded  by  participation  in  the 
law  of  the  individual  State.'  Von  Bar,  Das  intemationale  Privat-und 
Strafrecht,  p.  519.  Cf.  Sir  Henry  Maine's  remarks  on  'the  retreat  out 
of  sight  of  the  force  which  is  the  motive  power  of  law '  in  the  modem 

HOLLAND  E 


50 


POSITIVE   LAW. 


CHAP.  IV. 

Diffi- 
culties of 
the  theory 
of  sove- 
reignty. 


Considerable  doubt  has  of  late  been  thrown  upon  the 
doctrine  that  apart  from  the  existence  of  a  State,  and  of 
a  sovereign  power  within  it,  there  can  be  no  Law,  because 
all  laws  are  rules  enforced  by  such  a  power.  Real  diffi- 
culties in  applying  the  doctrine  to  the  facts  of  history 
have  been  pointed  out  by  Sir  Henry  Maine,  with  that 
fertility  of  illustration  and  that  cogency  of  argument 
for  which  his  writings  are  so  conspicuous.  He  asks  in 
what  sense  it  is  true  that  the  village  customs  of  the 
Punjaub  were  enforced  by  Runjeet  Singh,  or  the  laws 
of  the  Jews,  durmg  their  vassalage  to  Persia,  by  the 
Great  King  at  Susa.  He  denies  that  Oriental  empires, 
whose  main  function  is  the  levying  of  armies  and  the 
collection  of  taxes,  busy  themselves  with  making  or  en- 
forcing legal  rules ;  nor  will  he  concede  that  it  is  a  serious 
answer  to  his  objections  to  say  that  'what  a  government 
does  not  forbid  it  allows.'  He  would  almost  restrict  to 
the  Roman  Empire,  and  the  States  which  arose  out  of 
its  ruins,  the  full  applicability  of  the  Austinian  conception 
of  positive  law.  As  applied  to  other  political  societies, 
he  looks  upon  it  as  an  ideal  or  abstraction,  related  to 
actual  phenomena  as  are  the  axioms  of  mathematics  to 
the  actual  conditions  of  matter,  or  the  postulates  of 
political  economy  to  the  dealings  of  ordinary  life\ 

These  remarks  are  no  less  valuable  than  they  are  in- 
teresting. When  legal  phenomena  are  explained  by  the 
action  of  an  absolute  political  sovereign,  the  student  of 
Jurisprudence  should  always  remember,  and  may  no 
doubt  be  in  danger  of  forgetting,  that  the  explanation, 
though  true  as    a   general    statement,  necessarily  leaves 


world.  'The  great  difficulty,'  he  says,  'of  the  modem  analytical  jurists 
has  been  to  recover  from  its  hiding-place  the  force  which  gives  its  sanction 
to  the  law.'   Early  Law  and  Custom,  p.  388. 

•  Early  History  of  Institutions,  Lect.  xiii.  Cf .  the  Essays  on  '  Primitive 
Iceland,'  and  on  'the  Nature  of  Sovereignty,'  in  Bryce's  Studies  in 
History  and  Jurisprudence,  1901,  \.  p.  312,  ii.  p.  49. 


SOVEREIGNTY.  $1 

out  of  account  many  other  characteristics  of  such  pheno-     chap.  iv. 
mena. 

Sir  Henry  Maine  has  done  good  service  by  showing  Justifica- 
that  it  is  a  mistake  to  suppose  that  the  obligation  of  law  theoiy  ^ 
rests  everywhere,  and  at  all  times,  as  immediately  and 
obviously  upon  a  sovereign  political  authority  as  it  does 
in  England  at  the  present  day.  In  guarding  against 
a  crude  application  of  the  doctrine  of  sovereignty,  this 
great  jurist  has  however  perhaps  hardly  done  justice  to 
its  essential  truth.  The  reply  which  we  would  venture 
to  make  to  his  remarks  upon  this  point  would  be  to 
the  following  effect. 

With  reference  to  the  Western  nations,  we  would 
submit  that  the  dependence  of  law  upon  sovereignty  was 
as  obvious  in  Attica  and  Lacedaemon  as  it  ever  was 
under  the  Roman  Empire.  A  law  as  carried  by  Pericles, 
or  as  imagined  by  Plato,  would  conform  to  Austin's  defi- 
nition as  completely  as  would  a  constitution  of  Marcus 
Aurelius. 

With  reference  to  the  relation  of  a  great  Oriental  tax- 
gathering  empire  to  the  village  customs  of  its  subjects, 
or  to  the  more  distinctly  formulated  laws  of  a  con- 
quered province,  it  is  necessary  to  draw  a  distinction. 
Disobedience  to  the  village  custom  or  the  provincial  law 
may  either  be  forcibly  repressed,  or  it  may  be  acquiesced 
in,  by  the  local  authority.  If  it  be  habitually  repressed 
by  such  local  force  as  may  be  necessary,  it  follows  that 
the  local  force  must,  if  only  for  the  preservation  of  the 
peace,  be  supported,  in  the  last  resort,  by  the  whole 
strength  of  the  empire.  In  this  case  the  humblest  vil- 
lage custom  is  a  law  which  complies  with  the  requirement 
of  being  enforced  by  the  sovereign.  If,  on  the  other  hand, 
disobedience  be  habitually  acquiesced  in,  the  rules  which 
may  thus  be  broken  with  impunity  are  no  laws ;  and, 
so  far  as  such  rules  are  concerned,  the  tax-gathering 
empire  is  lawless,  its  organisation  consisting  merely  of  an 

E2 


52  POSITIVE    LAW. 

CHAP.  IV.  arbitrary  force,  acting  upon  a  subject  mass  which  is  but 
imperfectly  bound  together  by  a  network  of  religious 
and  moral  scruples. 

It  is  convenient  to  recognise  as  laws  only  such  rules 
as  can  reckon  on  the  support  of  a  sovereign  political 
authority,  although  there  are  states  of  society  in  which 
it  is  difficult  to  ascertain  as  a  fact  what  rules  answer  to 
this  description. 


CHAPTER  V. 


THE    SOURCES    OF    LAW. 

Tfie  obscurity  which  has  involved   the  whole  subject  Ambi- 
of  the  origin   of  law,  and  the  mutual  relations  of  cus-  f^e  term 
tomary,  judge-made,  and  statute  law,  is  largely  due  to'^^**' 
the  ambiguous  uses  of  the  term  'Source.'    The  uses  are 
threefold. 

Sometimes  the  word  is  employed  to  denote  the  quarter  Its  three 
whence  we  obtain  our  knowledge  of  the  law,  e.  g.  whether 
from  the  Statute-book,  the  Reports,  or  esteemed  Treatises. 

Sometimes  to  denote  the  mode  in  which,  or  the  persons 
through  whom,  those  rules  have  been  formulated  which 
have  acquired  the  force  of  law. 

Sometimes  to  denote  the  authority  which  gives  them 
that  force. 

The  last  two  uses  are  those  which  are  most  frequently 
confused  together.  Until  the  State  is  formed  there  can  * 
be  no  law,  in  the  strict  sense  of  the  term.  There-  may  be, 
and  doubtless  always  have  been,  morality  and  customary 
rules  of  conduct.  After  the  formation  of  the  State,  such 
rules  as  receive  its  sanction  and  support,  whether  pro- 
mulgated for  the  first  time  by  the  governing  body,  or 


54 


THE    SOURCES    OF   LAW. 


But  one 
source  of 
l<^al 
character. 


Several 
sources  of 
existence 
as  rules. 


already  in  operation  among  the  people,  become,  in  the 
proper  sense  of  the  term,  'laws.'  The  sole  source  of 
laws,  in  the  sense  of  that  which  impresses  upon  them 
their  legal  character,  is  their  recognition  by  the  State, 
which  may  be  given  either  expressly,  through  the  legisla- 
ture or  the  courts,  or  tacitly,  by  allowance;  followed, 
in  the  last  resort,  by  enforcement,  as  we  have  seen  in 
the  preceding  chapter. 

The  sources  of  laws,  in  the  sense  of  the  causes  to 
which  they  owe  their  existence  as  rules,  are,  however, 
several*.  These  may  be  distinguished  as  usage;  religion; 
adjudication;  scientific  discussion;  equity;  legislation. 
Some  confusion  has  arisen  from  not  observing  that  laws 
occasionally  owe  their  existence  as  rules  and  their  validity 
as  laws  to  one  and  the  same  authority. 


Custom.  I.  Usage,  or  rather  the  spontaneous  evolution  by  the 

popular  mind  of  rules  the  existence  and  general  accep- 
tance of  which  is  proved  by  their  customary  observance. 


'  Cf.  Cic.  Top.  s;  Auct.  ad  Herenn.  ii.  13;  Dig.  i.  1.7;  Gai.  i.  2.  The 
*  roots '  enumerated  in  the  Institutes  of  Manu  (ii.  6)  are  four:  Revelation, 
or  the  uttered  thoughts  of  inspired  seers;  the  institutes  of  revered  sages, 
handed  down  by  word  of  mouth  from  generation  to  generation;  the 
approved  and  immemorial  usages  of  the  people;  and  that  which  satisfies 
our  sense  of  equity,  and  is  acceptable  to  reason.  Tagore  Lectures,  1880, 

P-  137- 

In  Doctor  and  Student,  i.  4,  it  is  said  that  the  'law  of  England  is 
grounded  on  six  principal  grounds:  first,  it  is  grounded  on  the  law  of 
reason;  secondly,  on  the  law  of  God;  thirdly,  on  divers  general  customs  of 
the  realm;  fourthly,  on  divers  principles  that  be  called  maxims;  fiftlily, 
on  divers  particular  customs;  sixthly,  on  divers  statutes  made  in  Parlia- 
ment.' It  may  be  observed  that  St.  Germain  makes  here  no  mention  of 
'  the  law  of  nature.'  Sir  F.  Pollock  has  recently  (Michigan  Law  Review, 
ii.  p.  160)  called  attention  to  a  passage  in  whicli  this  autlior  explains  that 
'  it  is  not  used  among  them  that  be  learned  in  the  laws  of  England  to 
reason  what  thing  is  commanded  or  prohibited  by  the  Law  of  Nature  .  .  . 
but,  when  anything  is  grounded  upon  the  Law  of  Nature,  they  say  that 
Reason  will  that  such  and  such  a  thing  be  done;  and  if  it  be  prohibited 
by  the  Law  of  Nature,  they  say  it  is  against  Reason,  or  that  Reason  will 
not  suffer  that  to  be  done.' 


CUSTOM.  55 

is  no  doubt  the  oldest  form  of  law-making.     It    marks     chap.  v. 
the   transition  between  morality  and   law.    Morality  plus 
a  State-organisation   enforcing   the   observance   of  certain 
parts  of  it  is  customary  law. 

Two  questions  are  much  debated  with  reference  to 
usage.  First,  as  to  the  mode  of  its  growth  as  usage. 
Secondly,  as  to  its  transformation  into  law. 

Its  chief  characteristic  is  that  it  is  a  generally  observed  Its 
course  of  conduct.  No  one  was  ever  consciously  present 
at  the  commencement  of  such  a  course  of  conduct,  but 
we  can  hardly  doubt  that  it  originated  generally  in 
the  conscious  choice  of  the  more  convenient  of  two  acts, 
though  sometimes  doubtless  in  the  accidental  adoption 
of  one  of  two  indifferent  alternatives;  the  choice  in 
either  case  having  been  either  deliberately  or  accidentally 
repeated  till  it  ripened  into  habit  \ 

The  best  illustration  of  the  formation  of  such  habitual 
courses  of  action  is  the  mode  in  which  a  path  is  formed 
across  a  common.  One  man  crosses  the  common,  in  the 
direction  which  is  suggested  either  by  the  purpose  he 
has  in  view,  or  by  mere  accident.  If  others  follow  in 
the  same  track,  which  they  are  likely  to  do  after  it  has 
once  been  trodden,  a  path  is  made. 

Before  a  custom  is  formed  there  is  no  juristic  reason 
for  its  taking  one  direction  rather  than  another,  though 
doubtless  there  was  some  ground  of  expediency,  of  reli- 
gious scruple,  or  of  accidental  suggestion.  A  habitual 
course  of  action  once  formed  gathers  strength  and  sanctity 
every  year.  It  is  a  course  of  action  which  every  one  is 
accustomed  to  see  followed:  it  is  generally  believed  to 
be  salutary,  and  any  deviation  from  it  is  felt  to  be 
abnormal,  immoral.  It  has  never  been  enjoined  by  the 
organised  authority  of    the   State,  but    it    has  been  un- 

'  "EtTTt  5«  rh  (60s  yvai/ir)  fifV  t&v  xp'^f-*""'"'  Koitrf],  vS/ios  Se  iypcupoi  tdvovs  ^ 
T6\ea>s  .  .  .  (vprina  Se  dvdpwvuv  ovStvos,  oAAct  fiiov  /col  XP"'''"'-  -Dio  Chrys.  Orat. 
76,  quoted  by  W.  L.  Newman,  Arist.  Pol.  i.  p.  75  n. 


56  THE   SOURCES    OF   LAW. 

CHAP.  V.  questioningly  obeyed  by  the  individuals  of  which  the 
State  is  composed.  There  can  in  fact  be  no  doubt  that 
customary  rules  existed  among  peoples  long  before  nations 
or  states  had  come  into  being.  At  first  no  distinction 
was  made  between  such  of  these  rules  as  relate  to  in- 
dividual character  and  such  as  concern  society.  Morality 
and  customary  rules  were  the  same  thing,  but  the  dis- 
tinction between  the  two  was  more  and  more  sharply 
drawn  as  time  went  on. 
its  legal  After  the  organisation  of  States,  many  of  the  customary 

rules  of  society  still  continued  to  be  recognised,  and 
acquired  a  further  sanction.  They  had  previously  been 
enforced  only  by  popular  opinion,  or  by  the  licensed 
revenge  of  injured  parties.  They  were  now  enforced  by 
the  political  authority.  They  became  law ;  and  were 
doubtless  for  the  time  the  only  laws  known.  They  were 
the  unwritten,  but  well  known,  opinions  of  the  community 
as  to  social  right  and  wrong. 

KvpitoTtpoi  Ktti  ircpi  KvpuixrepwiV  twv  Kara  ypafi/iara  vofiow 
oi    KOTO.    TO,    Wr)    elcTLv  *. 

' Consuetudine  ius  est,'  says  Cicero,  'quod  aut  leviter 
a  natura  tractum  aluit  et  magis  fecit  usus,  ut  religionem, 
aut  si  quid  eorum  quae  ante  diximus  ab  natura  profectum, 
maius  factum  propter  consuetudinem  videmus,  aut  quod 
in  morem  vetustas  vulgi  approbatione  perduxit;  quod 
genus  pactum,  par,  iudicatum^.' 

The  laws  of  Draco  were  repealed,  says  Gellius,  'non 
decreto  iussoque,  sed  tacito  illiteratoque  consensu  ^' 

'Quid  interest,'  says  Julian,  'suffragio  populus  volun- 
tatem  suam  declaret  an  rebus  ipsis   et  factis  *  ? ' 

Justinian  lays  down  in  his  Institutes  that  'diuturni 
mores  consensu  utentium  comprobati    legem  imitantur'\' 

*  Ar.  Pol.  iii.  i6.  9. 

*  De  Inv.  ii.  c.  54.  Cf.  '  consuetudinis  autem  ius  esse  putatur  id  quod 
voluntate  omnium  sine  lege  vetustas  comprobavit,'  ib.  c.  22. 

^  Noct.  Att.  xi.  c.  18.     *Dig.  i.3.32.     Must.  1.2. 9.  Cf.  Cod.  viii.  53. 3. 


CUSTOM.  57 

It  would  be  more  correct  to  say  that  written  law  was 
an  imitation  of  custom. 

And  our  own  Bracton:  'consuetude  quandoque  pro 
lege  observatur  in  partibus  ubi  fuerit  more  utentium 
approbata,  et  vicem  legis  obtinet;  longaevi  enim  temporis 
usus  et  consuetudinis  non  est  vilis  auctoritas  * .' 

Custom  exists  as  law  in  every  country,  though  it  every- 
where tends  to  lose  its  importance  relatively  to  other  kinds 
of  law.  It  was  known  at  Rome  as  the  '  ius  moribus  con- 
stitutum.'  It  is  known  in  England  as  '  the  common  law  V 
or  'the  custom  of  the  realm,'  the  existence  of  which  is 
now  usually  proved  by  showing  that  it  has  been  affirmed 
by  the  Courts,  or  at  least  has  been  appealed  to  in  the 
writings  of  great  judicial  sages.  At  an  earlier  epoch  it 
was  doubtless  known  to  all  whom  it  concerned,  much  as 
are  now  the  ordinary  rules  of  morality  ^  Thus  the  law 
was  declared  in  the  English  as  in  the  Prankish  hundred- 
moots,  not  by  any  judicial  officer,  but  by  the  whole  body 
of  freemen  present,  who  were  represented  in  later  times 
by  the  Rachimburgi,  the  Schoffen,  and  the  Grand  Jury. 
The  increasing  complexity  of  affairs,  and  the  numerous 
other  subjects  opened  up  to  human  thought,  have  made 


*  Bracton,  lib.  i.  cap.  3,  following  Cod.  viii.  53.  2,  'Consuetudinis 
ususque  longaevi  non  vilis  auctoritas  est:  verum  non  usque  adeo  sui 
valitura  momento,  ut  aut  rationem  vincat  aut  legem;'  cf.  R.  v.  Essex, 
4  T.  R.  p.  594. 

'  The  term  '  ius  commune '  was  employed  by  the  canonists  to  describe 
the  law  common  to  the  universal  church,  as  opposed  to  the  special  laws 
governing  the  provincial  churches.  As  adopted  by  the  English  lawyers 
of  the  thirteenth  century,  besides  this  implication  of  universality,  it 
came  to  be  especially  opposed  to  that,  then  very  scanty,  species  of  law 
which  is  made  by  statute.  See  Maitland,  in  Engl.  Hist.  Rev.  xi.  p.  448. 
Sir  F.  Pollock  in  Enc.  of  the  Laws  of  England,  s.  v. '  Common  Law,'  cites 
the  Dialogue  of  the  Exchequer  (circa  1 1 80)  i.  1 1 ,  as  opposing  the '  commune 
regni  ius'  to  'voluntaria  principum  institutio.'  The  old  'gemeines 
Deutsches  Recht'  was  the  Roman,  as  modified  by  the  canon,  law.  Cf. 
the  use  of  '  common  law '  in  Scots  Acts  of  Parliament  of  the  sixteenth 
century.  A  new  common  law  for  the  larger  portion  of  Germany  is  now 
provided  by  the  Codes. 

'  Cf.  Savigny,  System,  i.  p.  181. 


58 


THE    SOURCES   OF   LAW. 


CHAP.  V. 


At  what 

moment 

does  a 

custom 

become 

law? 


the  general  consciousness  of  law-rules  impossible,  and 
have  rendered  necessary  the  more  circuitous  proof  of 
their  existence  by  means  of  Treatises  and  Reports. 

It  is  certain  that  customs  are  not  laws  when  they  arise, 
but  that  they  are  largely  adopted  into  the  law  by  State 
recognition.  How  far  does  this  recognition  extend?  Is 
it  the  case  that  all  customary  rules  on  proof  of  their 
existence  as  customs  obtam  State  recognition  as  laws'? 
In  other  words,  does  the  determinate  and  organised  will 
of  the  nation  invariably  adopt  and  confirm,  for  all 
matters  within  its  cognisance,  the  rules  which  have  been 
adopted  for  such  matters  by  the  indeterminate  and 
unorganised  will  of  the  nation,  or  of  portions  of  it? 

This  cannot  be  maintained.  English  Courts  require 
not  only  that  a  custom  shall  be  proved  to  exist,  but 
also  that  it  is  '  reasonable  \'  And  the  legislature  often 
abrogates  customs,  partially  or  wholesale. 

The  State,  through  its  delegates  the  judges,  undoubtedly 
grants  recognition  as  law  to  such  customs  as  come  up 
to  a  certain  standard  of  general  reception  and  useful- 
ness. To  these  the  Courts  give  operation,  not  merely 
prospectively  from  the  date  of  such  recognition,  but  also 
retrospectively;  so  far  implying  that  the  custom  was 
law  before  it  received  the  stamp  of  judicial  authentica- 
tion. The  contrary  view  supported  by  Austin  is  at 
variance  with  fact.  The  element  of  truth  in  his  view, 
which  he  has  done  good  service  by  bringing  into  pro- 
minence, is  that  usage,  though  it  may  make  rules, 
cannot,  without  obtaining  for  them  the  recognition  of 
the  State,  make  laws.  The  element  of  mistake  in  his 
view  is  to  date  the  State  recognition  from  the  moment 
that  the  usage  has  been  called  in  question  and  allowed 
to  be  good  in  a  court  of  justice. 

If  this  is  not  the  moment  at  which  the  State  impri- 


•  '  Malus  usus  est  abolendus.'  Co.  Litt.  s.  2 1 2.  Cf .  Cuthbert  v.Cumming, 
10  Ex.  809,  1 1  Ex.  405. 


CUSTOM.  59 

matur  is  given  to  custom,  what  is  that  moment  ?  We  chap.  v. 
can  only  say  that  the  rule  that  a  Court  shall  give 
binding  force  to  certain  kinds  of  custom  is  as  well 
established  as  hundreds  of  other  rules  of  law,  and  has 
been  established  in  the  same  manner.  The  judges  acting 
as  delegates  of  the  State,  have  long  ago  legislated  upon 
this  point  as  upon  many  others.  Not  having  a  code 
ready  to  their  hand  with  rules  for  every  emergency, 
they  have  invoked,  as  the  ratio  of  their  decisions,  not 
only  Equity,  or  the  generally  acknowledged  view  of 
what  is  fair,  and  previous  decisions  of  the  Courts,  upon 
the  faith  of  which  it  is  to  be  presumed  that  people 
have  been  acting,  but  also  customs,  established  among, 
and  by,  the  people  at  large,  as  presumably  embodying 
the  rules  which  the  people  have  found  suitable  to  the 
circumstances  of  their  hves.  The  Courts  have  there- 
fore long  ago  established  as  a  fundamental  principle  of 
law,  subject  of  course  in  such  case  to  many  restrictions 
and  qualifications,  that,  in  the  absence  of  a  specific  rule 
of  written  law,  regard  is  to  be  had  in  looking  for  the 
rule  which  governs  a  given  set  of  circumstances,  not 
only  to  Equity  and  to  previous  decision,  but  also  to 
custom  \ 

Binding  authority  has   thus  been  conceded  to  custom, 
provided   it   fulfils    certain    requirements,    the   nature    of- 
which  has  also  long  since  been  settled,  and  provided  it 
is  not  superseded  by  law  of  a  higher  authority^. 

When,  therefore,  a  given  set  of  circumstances  is  brought 
into  Court,  and  the  Court  decides  upon  them  by  bring- 
ing  them  within   the   operation   of  a  custom,  the  Court 

'  See  a  critique  upon  m3'view  by  Prof.  Dewey,  9  Pol.  Sci.  Quarterly,  p.  47. 

*  On  the  '  custom  of  merchants,'  once  supposed  to  be  incapable  of 
further  growth,  but  in  recent  cases  recognised  a.s  being  susceptible  of, 
even  rapid,  modification,  see  Goodwin  v.  Robarts,  L.  R.  10  Ex.  337; 
Edelstein  v.  Schuler  &  Co.,  [1902]  2  K.  B.  144:  'The  law  merchant  is  not 
fixed  and  stereotyped.  It  has  not  been  arrested  in  its  growth  by  being 
moulded  into  a  code.' 


6o 


THE   SOURCES    07    LAW. 


CHAP.  V. 


Theories 
of  the 
'  historical 
school.' 


appeals  to  that  custom  as  it  might  to  any  otlier  pre- 
existent  law.  It  does  not  proprio  motu  then  for  the  first 
time  make  that  custom  a  law;  it  merely  decides  as  a 
fact,  that  there  exists  a  legal  custom,  about  which  there 
might  up  to  that  moment  have  been  some  question, 
as  there  might  about  the  interpretation  of  an  Act  of 
Parliament.  It  then  applies  the  custom  to  the  circum- 
stances just  as  it  might  have  applied  an  Act  of  Parlia- 
ment to  them.  A  good  custom  or  an  intelligible  Act  of 
Parliament  either  exists  or  does  not  exist  objectively, 
before  the  case  comes  into  Court;  although  it  is  from 
the  decision  of  the  Court  in  the  particular  case  that  a 
subjective  knowledge  is  first  possible  for  the  people  of 
the  existence  or  non-existence  of  the  alleged  custom, 
or  that  this  or  that  is  the  meaning  of  the  Act  of 
Parliament. 

The  legal  character  of  reasonable  ancient  customs  is  to 
be  ascribed,  not  to  the  mere  fact  of  their  being  reason- 
able ancient  customs,  but  to  the  existence  "of  an  express 
or  tacit  law  of  the  State  giving  to  such  customs  the 
effect  of  laws. 

We  have  described  the  mode  in  which  the  State  usually 
acts  in  giving  to  custom  the  force  of  law.  It  also  may 
occasionally  do  so  in  express  terms.  It  sometimes  in 
express  terms  denies  them  any  such  force,  and  some- 
times limits  the  force  which  has  hitherto  been  ascribed 
to  them.  In  some  States  greater  force  has  been  allowed 
than  in  others  to  custom  as  compared  with  express  legisla- 
tion. The  theory  of  English  law  is  that  no  statute 
can  become  obsolete  by  desuetude.  The  contrary  view 
is  maintained  in  Germany,  and  even  in  Scotland. 

Such  an  account  of  the  growth  of  custom  and  its 
transformation  into  law  will  not  content  a  certain  school 
of  theorists,  of  whom  Savigny  and  Puchta  are  the  most 
illustrious.  They  tell  us  that  the  growth  of  Law  (Recht) 
has    no    dependence    upon     individual    arbitrary  will     or 


RELIGION.  6l 

accident  *.  It  is  begotten  in  the  People  (Volk)  by  the  chap. 
Popular  intelligence  (Volksgeist)  ^.  The  People,  however, 
has  no  actual  existence  apart  from  its  bodily  form,  the 
Stated  Law  has  its  existence  (Daseyn)  in  the  general- 
will  (Gesammtwille) ;  customary  observance  is  not  the 
cause  of  Law,  but  the  evidence  of  its  existence  \  It  does 
not  make  its  first  appearance  in  the  form  of  logical  rules  ^ 
Or,  going  still  further  afield,  we  are  told  by  Hegel  to 
see  in  the  rise  of  Law  the  evolution  of  the  Deity. 

We  are  in  fact  told  that  the  principle  is  anterior  to 
its  applications.  The  true  reply  to  which  we  conceive 
to  be,  that  the  principle  is  nothing  else  than  a  generalisa- 
tion from  the  applications.  The  only  unity  antecedent 
to  the  circumstances  is  the  common  constitution  of  man- 
kind. The  element  of  truth  in  the  view  of  the  so-called 
'liistorical  school'  of  Germany  is  that  the  adoption  of 
customary  rules  of  conduct  is  unconscious.  It  takes 
place  in  accordance  with  no  deliberate  plan,  but  comes 
into  being  piece-meal,  as  it  is  called  for  by  the  natural 
wants  of  mankind.  We  may  remark  as  results  of  its 
mode  of  formation,  first,  that  it  is  hence  better  adapted 
to  national  feeling  than  law  which  is  otherwise  manu- 
factured. Secondly,  that  its  importance  declines  with 
the  growth  in  a  nation  of  conscious  critical  power. 

II.  Religion.  The  description  of  law  as  'a  discovery  Religion, 
and  gift  of  God'  well  expresses  the  view  of  the  Greeks®. 
The  influence  of  the  priestly  colleges  can  never  be  left 
out  of  account  in  studying  the  development  of  the  law 
of  Rome',  nor  has  the  Corpus  luris  Canonici  failed  to 
affect    the  secular    systems  of    modern    Europe.    It    has 

'  Savigny,  System,  i.  p.  15.      *  lb.  i.  pp.  175,  177.     ^  lb.  i.  p.  22. 

*  lb.  i.  pp.  35,  168.   Cf.  Windscheid,  Pand.  i.  p.  40. 

*  Savigny,  i.  p.  16. 

*  Supra,  p.  41. 

'  For  a  perhaps  exaggerated  estimate  of  the  influence  of  religion  on 
Roman  law,  see  Fustel  de  Coulanges,  La  Cite  antique. 


62 


THE   SOURCES   OF   LAW. 


CHAP.  V.  long  been  laid  down,  and  has  only  recently  been  questioned, 
that  '  Christianity  is  part  of  the  law  of  England  \'  though 
few  judges  have  gone  so  far  as  Chief  Justice  Prisot  in 
declaring  that  '  Scripture  est  commun  ley  sur  quel  touts 
manieres  de  leis  sont  fondes^'  But  it  is  in  the  East 
that  religion  has  been,  to  many  nations  besides  the  Jews, 
a  direct  and  nearly  exclusive  source  of  law.  The  Penta- 
teuch finds  its  parallel  in  the  Koran  and  the  Institutes 
of  Manu.  Hence  arises  the  impossibility  of  any  general 
legislation  for  British  India.  'The  Hindoo  Law  and  the 
Mahomedan  Law,'  it  has  been  authoritatively  stated, 
*  derive  their  authority  respectively  from  the  Hindoo 
and  the  Mahomedan  religion.  It  follows  that,  as  a 
British  legislature  cannot  make  Mahomedan  or  Hindoo 
religion,  so  neither  can  it  make  Mahomedan  or  Hindoo 
law.  A  code  of  Mahomedan  law,  or  a  digest  of  any 
part  of  that  law,  if  it  were  enacted  as  such  by  the 
Legislative  Council  of  India,  would  not  be  entitled  to 
be  regarded  by  Mahomedans  as  the  very  law  itself,  but 
merely  as  an  exposition  of  law,  which  possibly  might 
be  incorrect  ^' 


Adjudica- 
tion. 


III.  Adjudication:  'Res  iudicatae,'  ' Gerichtsgebrauch,' 
'Jurisprudence  des  Tribunaux,'  'Usus  fori.'  As  to  the 
nature  of  this  source  of  law  there  are  two  theories. 
According  to  the  old   EngUsh  view,  as  stated  by  Black- 


*  Cowan  V.  Milboume,  L.  R.  2  Ex.  230,  but  see  Lord  Coleridge's  charge 
in  R.  V.  Ramsay  &  Foote,  15  Cox  C.  C.  231. 

^  Year  Book,  34  Hen.  VI.  4°- 

'  First  Report  of  the  Commissioners  appointed  to  prepare  a  body  of  sub- 
stantive law  for  India,  p.  60.  The  Statute  21  Geo.  III.  c.  70,  sect.  17,  in 
declaring  the  powers  of  the  Supreme  Court  at  Calcutta,  provides  that '  in- 
heritance and  succession  to  lands,  rents  and  goods,  and  all  matters  of 
contract  and  dealing  between  party  and  party,  shall  be  determined  in  the 
case  of  Mahomedans  by  the  laws  and  usages  of  Mahomedans,  and  in  the 
case  of  Gentus  by  the  laws  and  usages  of  Gentus,  and  when  only  one  of 
the  parties  shall  be  a  Mahomedan  or  Gentu,  by  the  laws  and  usages  of  the 
defendant.'  Similar  provisions  with  reference  to  the  Courts  at  Madras 
and  Bombay  are  contained  in  37  Geo.  III.  c.  142. 


ADJUDICATION.  6$ 

stone,  the  judges  are  '  not  delegated  to  pronounce  a  new  chap.  v. 
law,  but  to  maintain  and  expound  the  old  one^'  They 
are  the  depositaries  of  a  body  of  customary  principles 
which  have  only  to  be  applied  to  each  new  case  as  it  arises. 
Most  modem  writers,  on  the  other  hand,  agree  with  the 
criticisms  of  Austin,  upon  what  he  describes  as:  'the 
childish  fiction  employed  by  our  judges,  that  judiciary 
or  common  law  is  not  made  by  them,  but  is  a  mira- 
culous something  made  by  nobody ;  existing  from  eternity, 
and  merely  declared,  from  time  to  time,  by  the  judges  ^' 
In  point  of  fact,  the  Courts  in  all  countries  have  neces- 
sarily been  entrusted  with  a  certain  power  of  making 
rules  for  cases  not  provided  for  previously;  and  even 
of  modifying  existing  laws  from  time  to  time  in  order 
to  carry  out  the  current  ideas  of  what  is  equitable,  or 
to  adapt  them  to  the  changing  needs  of  society  ^  So 
it  was  said  in  a  recent  English  case:  'When  merchants 
have  disputed  as  to  what  the  governing  rule  should 
be,  the  Courts  have  applied  to  the  mercantile  business 
brought  before  them  what  have  been  called  legal  prin- 
ciples, which  have  almost  always  been  the  fundamental 
rules  of  right  and  wrong*;'    and  it  has  been  judicially 


*  I  Comm.  69.  For  a  defence  of  this  theory  by  Professor  Hammond 
of  Iowa,  see  his  edition  of  Lieber's  Hermeneutics,  p.  312.  Lord  Esher, 
M.R. ,  goes  so  far  as  to  say :  '  There  is  in  fact  no  such  thing  as  judge-made 
law,  for  the  judges  do  not  make  the  law,  though  they  frequently  have  to 
apply  existing  law  to  circumstances  as  to  which  it  has  not  previously  been 
authoritatively  laid  down  that  such  law  is  applicable.'  Willis  v.  Baddeley , 
[1892]  2  Q.  B.  (C.  A.)  324.  326. 

'  Lectures,  ii.  p.  655.  Cf.  Bentham:  'a  fiction  of  law  may  be  defined 
as  a  wilful  falsehood,  having  for  its  object  the  stealing  legislative  power 
by  and  for  hands  which  could  not,  or  durst  not,  openly  claim  it.'  Works, 
vol.  V.  p.  13. 

'  It  has  indeed  been  suggested  that  law  always  begins  as  a  generalisa- 
tion from  a  series  of  judicial  decisions.  Cf.  Maine,  Ancient  Law,  p.  5. 
On  the  almost  necessary  connection  between  judicial  decision  and  the 
production  of  law,  see  Demburg,  Lehrbuch  des  Preuss.  Privatrechts, 
i.  p.  43.  Lender  art.  4  of  the  Code  Civil,  a  judge  cannot  refuse  to  decide 
a  case  by  reason  of  the  silence,  obscurity,  or  inadequacy  of  the  law. 

*  Robinson  v.  Mollett,  L.  R.  7  E.  and  I.  App.  816. 


64  THE    SOURCES   OF    LAW. 

CHAP.  V.  stated  that  '  justice,  moral  fitness,  and  public  convenience, 
when  apphed  to  a  new  subject,  make  common  law  ^^  ith- 
out  a  precedent  \' 

This  power  the  Courts  have  rarely  exercised  avowedly  ^, 
but  rather  under  cover  of  exercising  one  or  other  of  the 
functions  with  which  they  are  more  distinctly  entrusted, 
viz.  first,  of  deciding  upon  the  existence  or  non-existence 
of  such  customs  as  they  are  authorised  to  recognise  as 
binding;  and,  in  the  second  place,  of  expounding,  and 
applying  to  particular  instances,  laws  which  are  necessarily 
expressed,  or  conceived  of,  in  general  terms  ^ 


*  PerWilles  J.,  in  Millar  r.  Taylor,  4  Burr.  2312.  With  reference  to  this 
dictum,  Pollock  C.  B.  in  Jefferys  v.  Boosey,  4  H.  L.  936,  said:  ' I  entirely 
agree  with  the  spirit  of  this  passage,  so  far  as  it  regards  the  repressing  of 
what  is  a  public  evil  .  .  .  but  I  think  the  Common  Law  cannot  create  new 
rights  and  limit  and  define  them,  because,  in  the  opinion  of  those  who 
administer  the  law,  such  rights  ought  to  exist  according  to  their  notions 
of  what  is  just,  right,  and  proper.'  Cf.  per  Bowen  L.  J.  in  Dashwood 
V.  Magniac,  '91,  3  Ch.  367.  Sir-Fitzjames  Stephen  thought  it  unlikely 
that  any  attempt  would  be  made  by  the  bench  to  create  new  offences  at 
the  present  day.    3  Hist.  Crim.  Law,  p.  359. 

'  Lord  Bacon  mentions  that  when  the  French  Parlements  intended 
their  decisions  to  make  law  they  delivered  them  en  robe  rouge.  Aug.  Sci. 
viii.  Aph.  7.  These  were  the  arrets  de  rlglement,  which  were  thus  solemnly 
delivered  on  the  eves  of  the  great  festivals.  Denisart,  Collection  de 
Jurisprudence,  s.  v.  Arrest. 

'  By  §§  47,  48  of  the  Introduction  to  the  Landrecht,  which  were 
repealed  in  1798,  judges  were  forbidden  to  interpret  doubtful  provisions, 
but  were  to  refer  their  difficulties  to  a  royal  commission,  and  be  bound 
by  its  decisions.  See  E.  Schuster,  in  L.  Q.  R.  xii.  p.  22.  On  the  vexed 
question  of  the  value  of  judge-made  law,  see  Hale,  Pref.  to  Rolle's 
Abridgment;  Bentham,  Works,  v.  p.  477;  Austin,  Lectures,  ii.  p.  34S; 
Prof.  Hammond,  in  Lieber's  Hermeneutics,  Note  N.;  Prof.  Clark, 
Practical  Jurisprudence,  p.  255;  8  Harvard  Law  Review,  328,  dealing 
with  Swift  V.  Tyson,  16  Peters,  i;  Gelpeke  v.  Dubuque,  i  Wallace, 
175,  and  Drummond  v.  Drummond,  L.  R.  2  Eq.  335;  also  an  art.  by 
Prof.  Tiedeman,  on  'stare  decisis,'  in  University  Law  Review,  Jan.  1896, 
p.  II,  and  a  paper,  read  at  St.  Louis  in  1904,  by  E.  B.  Whitney.  For  an 
ingenious  parallel  between  the  uniformity  of  judicial  decision,  which 
renders  a  science  of  case-law  possible,  and  the  uniformity  of  nature,  see 
Sir  F.  Pollock's  Essays,  p.  239.  For  suggested  classification  of  precedents 
as  'authoritative,'  'quasi-authoritative,'  &c.,  see  E.  Wambaugh,  The 
Study  of  Cases,  ed.  2,  1894,  and  J.  W.  Salmond  in  16  L.  Q.  R.  p.  376. 


ADJUDICATION.  65 

In  the  weight  which  they  attach  to  the  decision  of  a     chap.  v. 

court  legal  systems  differ  very  widely.    While  in  England  The  force 

of  pre- 
and  in  the  United   States  a  reported  case  may  be  cited  cedents. 

with  almost  as  much  confidence  as  an  Act  of  Parliament, 

on  the  Continent  a  judgment,  though  useful  as  showing 

the  view  of  the  law  held  by  a  qualified  body  of  men, 

seems  powerless  to  constrain  another  court  to  take  the 

same  view  in  a  similar  case*. 

The  Continental  view  is  an  inheritance  from  the  law 

of  Rome ;  for  although  Cicero  enumerates  '  res  iudicatae ' 

among   the   sources  of   law^  and   the   Emperor   Severus 

attributes  binding  force,  in  the  interpretation  of  ambiguous 

laws,  to  the  '  rerum  perpetuo  similiter  iudicatarum  auctori- 

tas^'  the  contrary  principle  was  finally  established  by  a 

Constitution    of    Justin ^    The    Codes    of    Prussia^    and 

Austria®  expressly  provide  that  judgments  shall  not  have 

the  force  of  law,  and  although  the  Codes  of  France,  Italy 

and  Belgium    are    silent   on   the    point,  the   rule   in   all 

these  countries  is  substantially  the  same,  viz.  that  previous 

decisions  are  instructive,  but  not  authoritative  ;   subject 

to  certain  special  provisions  of  a  strictly  limited  scope  ^. 


*  In  Scotland,  the  older  practice  approximated  to  the  Continental,  the 
later  to  the  English  system.  Cf.  Ersk.  Inst.  I.  i.  §  47,  Princ.  I.  i.  §  17 
with  Mr.  Rankine's  (i  890)  edition  of  the  last-named  work.  See  T.  C.  Clay 
in  Harvard  L.  R.  ix.  p.  27. 

^  Top.  c.  5.  The  Auct.  ad  Herenn.  ii.  13  discusses  the  weight  to  be 
ascribed  to  'res  simili  de  causa  dissimiliter  iudicatae,'  by  comparing 
'iudicem  cum  iudice,  tempus  cum  tempore,  numerum  cum  numero 
iudiciorum.' 

'  Dig.  i.  3.  38. 

*  '  Nemo  index  vel  arbiter  existimet  ncque  consultationes  quas  non  rite 
iudicatas  esse  putaverit  sequendum,  et  multo  magis  sententias  eminentis- 
simorum  praefectorum,  vel  aliorum  procerum;  non  enim  si  quid  non 
bene  dirimatur,  hoc  et  in  aliorum  iudicum  vitium  extendi  oportet ,  cum  non 
exemplis  sed  legibus  iudicandum  sit.'    Cod.  vii.  45.  13.  Cf.  Dig.  i.  18.  12. 

*  Landrecht,  Einl.  §  6.  ••  Burgerl.  Gesetzbuch,  12. 

^  E.  g.  the  French  law  of  27  Ventose,  Ann.  viii,  art.  88;  the  Prussian 
Cabinet  Orders  of  1836,  &c.;  and  similar  Austrian  ordinances.  The 
Gerichtsverfassungsgesetz  fiir  das  Deutsche  Reich,  art.  137,  requires 
a  court,  wishing  to  override  a  precedent,  to  refer  the  case  to  a  higher 

HOLLAND  F 


66  THE   SOURCES    OF   LAW. 

CHAP.  V.  In  England  cases  have  been  cited  in  court  at  least  as 
early  as  the  time  of  Edward  I  *.  They  are  however  stated 
by  Lord  Hale  to  be '  less  "than  law,'  though  '  greater 
evidence  thereof  than  the  opinion  of  any  private  persons, 
as  such,  whatsoever  ^ ; '  and  his  contemporary,  Arthur 
Duck,  remarks,  that  the  Common  Law  judges,  in  cases  of 
difficulty,  'non  recur  runt  ad  ius  civile  Komanorum,  ut 
apud  alias  gentes  Europeas,  sed  suo  arbitrio  et  conscientiae 
relinquuntur  ^'  But  in  Blackstone's  time  the  view  was 
established  that  'the  duty  of  the  judge  is  to  abide  by 
former  precedents  * ; '  and  it  has  long  been  well  understood 
that  our  courts  are  arranged  in  this  respect  in  a  regular 
hierarchy,  those  of  each  grade  being  bound  by  the  decisions 
of  those  of  the  same  or  a  higher  grade,  while  the  House 
of  Lords  is  bound  by  its  own  decisions  ^  This  is  not 
the  case  in  the  Privy  Council  ^  or  in  the  Supreme  Court 
of  the  United  States. 

There   have   been   of   late   some   symptoms   of    an   ap- 
proximation  between    the    two    theories.    While    on    the 


tribunal.  On  the  distinction  between  les  considerants  in  a  French  decision 
and  the  judgment  of  an  English  court,  see  Proceedings  in  the  Behring's 
Sea  Arbitration,  Pt.  v.  p.  1051. 

'  In  Year  Book  32  Ed.  I,  ed.  Horwood,  p.  32,  the  court  is  warned 
by  counsel  that  its  decision  'servira  en  chescun  guare  non  admisit  en 
Engleterre.'  ^  Hist.  Comm.  Law,  ch.  4. 

'  He  continues :  '  Rerum  p)er  priorum  saeculorum  indices  iudicatarum 
exemplis  non  semper  t^nentur  praesentis  saeculi  indices,  nisi  coram  se 
agitatis  existimaverint  convenire,  neque  enim  par  in  parem  imperium 
habet.'    De  Usu  et  Auct.  ii.  c.  8.  6,  8.  *  1  Comm.  69. 

*  On  the  finality  of  the  decisions  of  the  House  of  Lords,  see  R.  v.  Millis, 
10  CI.  &  F.  534;  Beamish  v.  Beamish,  9  H.  L.  Ca.  339;  Caledonian  Ry.  Co. 
V.  Walker's  Trustees,  L.  R.  7  App.  Ca.  259.  The  doctrine  has  recently 
been  laid  down  in  the  most  unqualified  manner  by  Halsbury  C.  in 
London  Street  Tramways  Co.  v.  London  County  Council,  [1898]  A.  C.  375. 
He  would,  however,  narrow  the  applicability  of  a  case  to '  what  it  actually 
decides,'  continuing, '  I  entirely  deny  that  it  can  be  quoted  for  a  proposi- 
tion that  may  seem  to  logically  follow  from  it.'  Quinn  v.  Leathern,  [  1 90 1  ] 
A.  C.  at  p.  506. 

'  Risdale  v.  Clifton,  2  P.  D.  306,  307;  nor  are  Privy  Council  decisions 
binding  upon  other  courts,  Leask  v.  Scott,  2  Q.  B.  D.  380. 


ADJUDICATION.  6/ 

Continent  judicial  decisions  are  reported  with  more  care,     chap. 
and  cited  with  more  effect,  than  formerly,  indications  are 
not  wanting  that  in  England  and  in  the  United  States 
they  are  beginning  to  be  somewhat  more  freely  criticised 
than  has  hitherto  been  usual  \ 

If  a  decision  is  reversed  by  a  higher  court,  a  curious 
question  arises  as  to  the  position  of  persons  who  have 
in  the  meantime  acted  in  accordance  with  the  original 
decision.  Was  that  decision  good  law  till  it  was  reversed, 
or  was  it  a  mere  mistake,  upon  which  persons  acted  at 
their  peril ;  their  inabiUty  to  predict  the  result  of  the 
appeal  being  Mgnorantia  iuris'^? 

IV.  Scientific  discussion, ' Wissenschaft,'  'Jurisprudence,' Science, 
has  from  time  to  time  played  a  useful  part  in  the  develop- 
ment of  rules  which  have  often  been  adopted  as  laws. 
The  '  responsa  prudentium,'  before  they  were  clothed  with 
an  official  character,  received  at  Rome  a  deference  similar 
to  that  which  has  been  conceded  in  England  to  the 
'practice  of  conveyancers ^'  and  to  the  writings  of  such 
sages  of  the  legal  profession  as  Lord  Coke  and  Sir 
Matthew  Hale\  Of  a  similar  character  is  the  weight 
attributed    to    the  'obiter  dicta'  of  EngUsh  Judges,  i.e. 


'  The  astounding  growth  of  Reports  in  the  United  States  must  of  itself 
tend  to  produce  this  result. 

'  It  has  been  held  in  America  that  a  'subsequent  decision  is  a  legal 
adjudication  that  the  prior  one  was  not  law  at  the  time  it  was  made,' 
Woodruff  V.  Woodruff,  52  N.  Y.  Ct.  App.  53.  In  a  case  in  the  Q.  B. 
Division,  Henderson  v.  Folkestone  Waterworks  Co.,  apparently  reported 
only  in  Times  Law  Rep.  1884-5,  P-  329,  a  contrary  view  seems  to  have 
been  taken;  so  also  in  Pierce  v.  Pierce,  46  Ind.  86.  On  the  position 
of  persons  acting  on  a  decision  subsequently  reversed,  see  Lieber,  Her- 
meneutics,  p.  326,  and  Law  Quarterly  Review,  i.  p.  313. 

'  See  Willoughby  v.  Willoughby,  i  T.  R.  771. 

*  On  the  similar  function  of  the  Commentators  upon  Hindoo  law,  see 
Sir  W.  Markby,  Elements  of  Law,  §  83.  On  the  influence  exercised  upon 
the  formation  of  judge-made  law  by  the  wTiters  of  text-books,  see  some 
interesting  remarks  in  Prof.  Dicey's  Law  of  the  Constitution,  ed.  vi, 
P-  496. 

Fa 


68  THE   SOURCES    OF   LAW. 

CHAP.  V.     to   such   statements   of    law  made   by  them   as   are   not 
necessarily  called  for  by  the  case  before  them^ 

Equity.  V.  Equity.    As   old   rules   become  too  narrow,  or  are 

felt  to  be  out  of  harmony  with  advancing  civilisation, 
a  machinery  is  needed  for  their  gradual  enlargement  and 
adaptation  to  new  views  of  society.  One  mode  of  ac- 
complishing this  object  on  a  large  scale,  without  appearing 
to  disregard  existing  law,  is  the  introduction,  by  the 
prerogative  of  some  high  functionary,  of  a  more  perfect 
body  of  rules,  discoverable  in  his  judicial  conscience,  which 
is  to  stand  side  by  side  with  the  law  of  the  land,  over- 
riding it  in  case  of  conflict,  as  on  some  title  of  inherent 
superiority,  but  not  purporting  to  repeal  it.  Such  a  body 
of  rules  has  been  called  'Equity.'  It  consists  in  reahty 
of  such  of  the  principles  of  received  morality  as  are  applic- 
able to  legal  questions,  and  commend  themselves  to  the 
functionary  in  question^.  Of  a  resort  to  this  expedient 
the  two  great  historical  instances  are  the  action  of  the 
Praetor  at  Rome  and  of  the  Chancellor  in  England. 

The  Prae-         The  Praetor,  though  technically  without  any  authority 
tor 

to  legislate,  exerted,  during  his  year  of  office,  a  power 

over  all  judicial  process,  which,  at  first  confined  within 

narrow  bounds  by  the  formality  of  the  ancient  system  of 

pleading,  became  in  later  times  almost  unlimited.    Each 

Praetor  on  entering  upon  his  functions  gave  public  notice 

in  his  edict  of  the  modes  in  which  he  intended  to  give 

reUef    against    the    rigidity    of    the    established    system. 

The  practical  devices  thus  employed  were  developed  by 

*  Such,  for  instance,  as  the  treatise  upon  Bailments  imported  by  Holt 
C.  J.  into  his  judgment  in  the  case  of  Coggs  v.  Bernard,  i  Sm.  L.  C.  176. 

^  Since  the  generality  of  a  law  is  not  the  only  hardship  in  its  applica- 
tion which  is  redressed  by  Equity,  Aristotle's  definition  of  rh  iineiKfs  as 
iirav6pOwixa  v6fiov  ^  iWeinei  Sih  rh  Ka66\ov,  Eth.  V.  c.  lo,  is  hardly  adequate. 
Elsewliere  he  describes  it  as  being  rh  irapa  rhv  yeypafifxtvov  vSfiov  SiKaiov,  and 
as  looking  ix^i  irphs  rhv  v6/jlov  aWa  irphi  ri/u  Siduotav  tov  i>oho6(tov,  Kal  ixi) 
■wphs  T'Jji'  irpa^iv  ctWa  irphs  riiv  irpoaipfaiv,  Ka\  /xij  vphs  rh  fjifpos  oAAa  irphs  rh 
Skov.  Rhet.  i.  13. 


EQUITY.  69 

a  long  succession  of  Praetors  into  a  body  of  *  ius  honor-  chap.  v. 
arium '  equal  in  bulk,  and  more  than  equal  in  importance, 
to  the  still  unrepealed  'ius  civile.'  Thus  it  was  that, 
alongside  of  the  proprietary  rights  open  to  Roman  citizens 
alone,  there  was  introduced  a  system  of  possession  pro- 
tected by  interdicts  and  fictitious  actions  which  had  all 
the  advantages  of  ownership.  Efifect  was  given  to  con- 
tracts wliich  could  not  be  found  in  the  limited  Ust  of 
those  recognised  by  the  law,  and  to  wills  which  were 
neither  sanctioned  by  the  Comitia  nor  solemnised  by  a 
sale  of  the  inheritance  with  copper  and  scales.  While 
succession  ab  intestato  still  passed  by  law  to  the  members 
of  the  artificial  'agnatic'  family,  its  benefits  were  prac- 
tically secured  to  the  blood-relations.  '  Naturali  aequitate 
motus  proconsul  omnibus  cognatis  promittit  bonorum 
possessionem,  quos  sanguinis  ratio  vocat  ad  hereditatem  \' 

A  very  similar  phenomenon  of  a  double  system  of  law,TheChan- 
the  newer  practically  overriding  the  older,  while  affecting''^  ^'^' 
to  treat  it  with  the  utmost  deference  ^  occurred  also  in 
England,  where  however  its  introduction  was  less  easily 
managed  than  at  Rome.  No  great  ofiicer  in  England  was 
invested  with  the  attributes  which  enabled  the  Praetor 
to  announce  beforehand  the  principles  upon  which  he 
intended  so  to  administer  the  law  as  in  effect  to  modify 
its  operation.  The  Chancellor,  with  his  clerks,  could,  it 
is  true,  frame  new  writs,  but  it  was  for  the  Common  Law 
judges  to  decide  upon  their  validity^.  He  therefore  con- 
tented himself  with  what  proved  to  be  the  very  suflQcient 
expedient  of  deciding  each  case  that  was  brought  before 
him,  as  nearly  as  he  dared,  in  accordance  with  what 
seemed  to  him  to  be  its  merits.  In  his  character  of 
'Keeper  of  the  King's  Conscience,'  he  was  held  justified 


*  Dig.  xxxviii.  8.  2. 

'  'Equity  follows  the  law.'   Cf.  'ius  praetorium,  quod  ius  civile  sub- 
sequitur.'    Dig.  xxii.  5.  14. 

'  Spence,  Equitable  Jurisdiction,  i.  p.  325. 


70  THE   SOURCES   OF   LAW. 

CHAP.  V.     in  thus  exerting  the  undefined  residuary  authority  which 
in  early  times  was  attributed  to  an  English  king\ 
So  it  was  sung  of  St.  Thomas  a  Becket : 

'Hie  est  qui  regni  leges  cancellat  iniquas, 
Et  mandata  pii  principis  aequa  facit^' 

And  Sir  Christopher  Hatton  asserts:  'It  is  the  holy 
conscience  of  the  Queen  that  is  in  some  sort  committed 
to  the  Chancellor  ^' 

On  this  foundation  was  built  up  that  vast  and  complex 
theory  of  Trusts  which  is  peculiar  to  the  law  of  England, 
and  that  system  of  interference  by  means  of  '  Injunctions  ' 
by  which  the  process  of  the  Common-Law  Courts  was 
brought  to  a  standstill,  when  it  seemed  likely  to  work 
injustice. 

The  principles  by  which  the  Chancellors  were  guided 
in  the  exercise  of  their  powers  may  best  be  gathered 
from  their  own  mouths. 

Lord  Hardwicke  said :  '  When  the  Court  finds  the  rules 
of  law  right,  it  will  follow  them,  but  then  it  will  like- 
wise go  beyond  them*.' 

Lord  Cottenham:  'I  think  it  is  the  duty  of  this  Court 
to  adapt  its  practice  and  course  of  proceeding  to  the 
existing  state  of  society,  and  not,  by  too  strict  an  adher- 
ence, to  decline  to  administer  justice,  and  to  enforce  rights 
for  which  there  is  no  other  remedy.  This  has  always 
been  the  principle  of  this  Court,  though  not  at  all  times 
sufficiently  attended  to^' 

It  is  not  surprising  that  claims  to  a  jurisdiction  thus 
elastic  should    have    given  occasion     to  some    criticism. 

*  Cf.  Sir  H.  Maine,  Ancient  Law,  c.  iii.,  and  Early  Law  and  Custom, 
c.  vii.  p.  605. 

*  lo.  Sarisburiensis,  Policraticus,  Auctor  ad  opus  suum. 

'  Spence,  i.  p.  414.  Cf.  'the  general  conscience  of  the  realm,  which  is 
Chancery.'  Fenner  J.,  cited  in  Bacon's  Reading  on  Uses,  Works,  vii. 
p.  401. 

*  Paget  V.  Gee,  Amb.  App.  p.  810. 

'  Walworth  v.  Holt,  4  My.  and  Cr.  635. 


EQUITY.  71 

*  Equity,'  said  Selden,  '  is  a  roguish  thing.  For  law  we 
have  a  measure,  we  know  what  to  trust  to:  equity  is 
according  to  the  conscience  of  him  that  is  Chancellor, 
and  as  that  is  larger  or  narrower,  so  is  equity.  'Tis  all 
one  as  if  they  should  make  the  standard  for  the  measure, 
a  Chancellor's  foot.  What  an  uncertain  measure  would 
this  be !  One  Chancellor  has  a  long  foot,  another  a  short 
foot,  a  third  an  indifferent  foot;  'tis  the  same  thing  in 
the  Chancellor's  conscience  \' 

To  this  charge  Lord  Eldon  replied  in  a  judgment  which 
traces  the  lines  on  which  his  own  administration  of  equity 
proceeded :  '  The  doctrines  of  this  Court  ought  to  be  as 
well  settled  and  made  as  uniform,  almost,  as  those  of  the 
Common  Law,  laying  down  fixed  principles,  but  taking 
care  that  they  are  to  be  applied  according  to  the  circum- 
stances of  each  case.  I  cannot  agree  that  the  doctrines 
of  this  Court  are  to  be  changed  with  every  succeeding 
judge.  Nothing  would  inflict  on  me  greater  pain,  in 
quitting  this  place,  than  the  recollection  that  I  had  done 
anything  to  justify  the  reproach  that  the  equity  of  this 
Court  varies  like  the  Chancellor's  foot^.' 

Lord  Nottingham  had  said,  long  before:  'With  such 
a  conscience  as  is  only  naturalis  et  interim  this  Court 
has  nothing  to  do:  the  conscience  by  which  I  am  to 
proceed  is  merely  civilis  et  politica,  and  tied  to  certain 
measures  ^.' 

The  latest  authoritative  exposition  of  the  principles 
by  which  the  court  is  guided  approximates  more  nearly 
to  the  views  of  Lord  Cottenham.  Speaking  of  'the 
modern  rules  of  equity,'  the  Master  of  the  Rolls  (Jessel) 
said  in  a  recent  case:  'I  intentionally  say  modern  rules, 
because  it  must  not  be  forgotten  that  the  rules  of  Courts 


»  Table  Talk,  tit.  'Equity.' 

'  Gee  V.  Pritchard,  2  Swanst.  414;  cf.  Davis  v.  Duke  of  Marlborough, 
ib.  152;  Grierson  v.  Eyre,  9  Vesey,  347. 
'  Cook  V.  Fountain  (1676),  3  Swanst.  600, 


72  THE   SOURCES   OF   LAW. 

CHAP.  V.  of  Equity  are  not  like  the  rules  of  the  Common  Law, 
supposed  to  be  established  from  time  immemorial.  It  is 
perfectly  well  knoAvn  that  they  have  been  established 
from  time  to  time — altered,  improved,  and  refined  from 
time  to  time.  In  many  cases  we  know  the  names  of 
the  Chancellors  who  invented  them.  No  doubt  they 
were  invented  for  the  purpose  of  securing  the  better 
administration  of  justice,  but  still,  they  were  invented. 
Take  such  things  as  these  —  the  separate  use  of  a  married 
woman,  the  restraint  on  alienation,  the  modern  rule 
against  perpetuities,  and  the  rules  of  equitable  waste. 
We  can  name  the  Chancellors  who  first  invented  them, 
and  state  the  date  when  they  were  first  introduced  into 
Equity  jurisprudence ;  and,  therefore,  in  cases  of  this  kind 
the  older  precedents  in  Equity  are  of  very  little  value. 
The  doctrines  are  progressive,  refined,  and  improved ; 
and  if  we  want  to  know  what  the  rules  of  Equity  are 
we  must  look,  of  course,  rather  to  the  more  modern  than 
the  more  ancient  cases  \' 

As  Sir  Henry  Maine  points  out,  it  was  greatly  owing 
to  Lord  Eldon  himself,  during  his  long  reign  in  the 
Court  of  Chancery,  that  equity  became  a  body  of  rules 
scarcely  more  elastic  than  the  Common  Law.  A  similar 
stage  was  reached  in  the  history  of  Roman  equity  when 
the  edicts  of  the  Praetors  were  consolidated  by  Salvius 
lulianus  in  the  time  of  the  Emperor  Hadrian  ^  The 
subsequent  history  of  both  systems  is  also  not  dissimilar. 
The  work  of  the  Praetors  was  finally  adopted  into  the 
body  of  the  law  by  the  legislation  of  Justinian,  as  were 
the  doctrines  of  the  Chancellors  into  the  law  of  England 
by  the  Judicature  Act  of   1873,      In  either  case  equity 


»  Re  Hallett's  Estate,  L.  R.  13  Ch.  Div.  710. 
'  Ancient  Law,  c.  ii'i. 


LEGISLATION.  73 

ceased  to  exist  as  an  independent  system,  but  bequeathed     chap.  v. 
its  principles  to  the  system  into  which  it  was  absorbed. 

'  Graecia  capta  f erum  victorem  cepit.' 

VI.  Legislation  tends  with  advancing  civilisation  toLegisla- 
become  the  nearly  exclusive  source  of  new  law  \  It  ^^^' 
may  be  the  work  not  only  of  an  autocrat  or  of  a 
sovereign  ParUament,  but  also  of  subordinate  authorities 
permitted  to  exercise  the  function.  The  making  of 
general  orders  by  our  Judges,  or  of  by-laws  by  a  rail- 
way company,  is  as  true  legislation  as  is  carried  on  by 
the  Crown  and  the  estates  of  the  realm  in  Parliament. 
Rules  made  by  a  subordinate  legislative  authority  are, 
however,  valid  only  in  so  far  as  that  authority  has  acted 
within  its  delegated  powers  in  making  them,  and  it  is 
the  duty  of  the  Courts  of  Law  to  declare,  when  occasion 
arises,  whether  the  rules  are  in  this  respect  weU  or  ill 
made.  This  function  of  the  Courts  is  every  day  exercised 
with  reference  to  the  by-laws  of  railway  companies  or 
municipal  corporations.  It  is  no  less  systematically, 
though  not  so  frequently,  exercised  in  testing  the  legality 
of  laws  made  by  the  Governor-General  of  India  in  Council, 
by  the  Parliament  of  the  Dominion  of  Canada,  or  by 
that  of  the  Commonwealth  of  Australia.  When  under 
a  federal  government  the  power  of  even  the  supreme 
legislature  to  make  laws  is  strictly  defined  by  a  written 
constitution,  this  function  of  the  courts  is  of  the  first 
importance.  Hence  the  commanding  position  occupied  in 
the  United  States  by  the  federal  Supreme  Court.  Con- 
gress, unlike  the  British  Parliament,  is  not  omnipotent. 
Its  powers  are  circumscribed  by  a  constitution  which  it 
cannot  alter,  and  it  is  for  the  Supreme  Court,  in  the  last 
resort,    to  say  whether  a  given  act  of  Congress  has  the 


*  On  the  relation  of  legislation  to  Nature,  Custom,  and  Utility,  see 
Cicero,  de  Inv.  ii.  c.  22. 


74 


THE   SOURCES   OF   LAW. 


CHAP.  V.     force  of  law,  or,  as  being  '  unconstitutional,'  is  mere  waste 
paper  *. 


'Written' 
and  '  un- 
written' 
law. 


In  legislation,  both  the  contents  of  the  rule  are 
devised,  and  legal  force  is  given  to  it,  by  acts  of 
the  sovereign  power  which  produce  'written  law.'  All 
the  other  law  sources  produce  what  is  called  '  unwritten 
law^'  to  which  the  sovereign  authority  gives  its  whole 
legal  force,  but  not  its  contents,  which  are  derived  from 
popular  tendency,  professional  discussion,  judicial  in- 
genuity, or  otherwise,  as  the  case  may  be.  Rules  thus 
developed  obtain  the  force  of  law  by  complying  Avith 
the  standards  which  the  State  exacts  from  such  rules 
before  it  gives  them  binding  force.  Having  so  complied, 
these  rules  are  laws,  even  before  the  fact  that  they  are 
so  has  been  attested  by  a  Tribunal. 

The  State  has  in  general  two,  and  only  two,  articulate 
organs  for  law-making  purposes  —  the  Legislature  and  the 
Tribunals.  The  first  organ  makes  new  law,  the  second 
attests  and  confirms  old  law,  though  under  cover  of  so 
doing  it  introduces  many  new  principles. 


^  The  relation  of  subordinate  legislatures  to  the  Law  Courts  is  fully  dis- 
cussed in  Professor  Dicey's  Law  of  the  Constitution,  c.  3,  and  Mr.  Bryce's 
American  Commonwealth,  vol.  i.  c.  23. 

*  Cf.  Hale,  Hist.  C.  L.,  p.  55;  Blackstone,  Comm.  i.  p.  63;  Austin, 
Jurisprudence,  i.  p.  195;  Lieber,  Hermeneutics,  by  Hammond,  p.  323. 
The  Roman  writers,  on  the  other  hand,  give  to  these  terms  a  merely 
accidental  and  literal  meaning.  Their  'ius  scriptum'  is  that  which  is 
committed  to  writing,  by  whomsoever,  at  the  time  of  its  origin. 


CHAPTER   VI. 

THE   OBJECT   OF   LAW. 

Thk  most  obvious  characteristic  of  Law  is  that  it  is  Law  as  re- 
coercive.    'It  was  added  because  of  transgressions': 
'  lura  inventa  metu  iniusti  fateare  necesse  est  \' 
'Law  was    brought    into  the  world,'    says  Hobbes,    'for 
nothing  else,  but  to  limit  the  naturall  liberty  of  particular 
men,  in  such  manner,  as  they  might  not  hurt,  but  assist 
one  another,  and  joyn  together  against  a  conunon  enemy  ^' 
Even  when  it  operates  in  favour  of  the  legitimate  action 
of  individuals,  it  does  so  by  restraining  any  interference 
with  such  action.    It  is  accordingly  defined  by  Kant  as 
'the  totality  of  the  conditions  under  which  the  free-will 
of  one  man  can  be  united  with  the  free-will  of  another, 
in  accordance  with  a  general  law  of  freedom';'    and  by 
Savigny,  as    'the    rule    which    determines    the    invisible 
limit  within  which    the  existence    and    activity  of    each* 
individual  may  obtain  secure  and    free  play*.'    Both  of 
these  high  authorities  make  the  function  of  Law  to  be 


'  Hor.  Sat.  i.  3.  iii. 

^  Leviathan,  p.  138.    Cf.  'Factae  sunt  autem  leges  ut  earum  metu 
humana  coerceatur  audacia,  &c.'     Decretum,  Pars  i,  Dist.  i,  c.  i. 
'  Rechtslehre,  Werke,  vii.  p.  27.  *  System,  i.  p.  114. 


76 


THE   OBJECT   OF   LAW. 


CHAP.  VI. 


Law  as  or- 
ganising. 


the  preservation  from  interference  of  the  freedom  of  the 
will.  This  conception  is  purely  negative,  and  a  wider 
and  positive  conception  is  needed  to  embrace  the  operation 
of  Public  as  well  as  of  Private  Law. 

The  Kantian  definition  is  wide  enough  to  cover  all 
rules  which  regulate  the  relations  of  individuals  one  to 
another,  but  it  is  too  narrow  to  cover  enactments  pro- 
viding, for  instance,  for  the  organisation  of  a  ministry 
of  education,  or  giving  to  certain  great  libraries  a  claim 
to  a  copy  of  every  new  book  that  is  published. 

A  school  of  writers,  among  whom  Krause  *  and  Ahrens  ^ 
are  representative  men,  demands  that  Law  shall  be  con- 
ceived of  as  harmonising  the  conditions  under  which  the 
human  race  accomplishes  its  destiny  by  realising  the 
highest  good  of  which  it  is  capable.  The  pursuit  of 
this  highest  good  of  the  individual  and  of  society  needs 
a  controlling  power,  which  is  Law,  and  an  organisation 
for  the  application  of  its  control,  which  is  the  State. 

The  truth  which  is  contained  in  these  somewhat  obscure 
speculations  is  capable  of  much  simpler  expression;  and 
to  find  a  definition  of  the  function  of  law  which  would 
leave  these  writers  nothing  to  desire,  we  have  only  to 
turn  to  Lord  Bacon,  who  says:  'Finis  et  scopus  quem 
leges  intueri,  atque  ad  quem  iussiones  et  sanctiones  suas 
dirigere  debent,  non  alius  est  quam  ut  cives  feliciter 
degant^'  The  same  idea  is  expressed  by  Locke,  who 
asserts  that  'Law,  in  its  true  notion,  is  not  so  much  the 
limitation  as  the  direction  of  a  free  and  intelligent  agent 
to  his  proper  interest,  and  prescribes  no  further  than  is 
for  the  general  good  of  those  under  the  law  ...  so  that, 
however  it  may  be  mistaken,  the  end  of  the  law  is,  not 
to  abolish  or  restrain,  but  to  preserve  or  enlarge  freedom  ^' 


'  Abriss  des  Systemes  der  Philosophic  des  Rechtes,  1828. 

^  Cours  de  droit  naturel,  1840. 

'  De  Aug.  lib.  viii.  aph.  5.    Cf.  S.  Thorn,  i.  2.  q.  90.  art.  20  concl. 

*  Of  Civil  Government,  i.  §  57. 


SOCIAL  WELL-BEING.  77 

So  Bentham:  'Of  the  substantive  branch  of  the  law  the    chap. vi. 

only  defensible  object  or  end  in  view  is  the  maximisation 

of  the  happiness  of  the  greatest  number  of  the  members 

of  the  community  m  question  \'    Still  better  perhaps  is 

the  statement  of  Leibnitz:  'humanae  societatis  custodiam 

non  esse  principium  lustitiae,  sed  tamen  iustum  esse  quod 

societatem  ratione  utentium  perficit^.' 

Law  is  something  more  than  police.  Its  ultimate 
object  is  no  doubt  nothing  less  than  the  highest  well- 
being  of  society:  and  the  State,  from  which  Law  derives 
all  its  force,  is  something  more  than  a  '  Rechtsversicherungs- 
anstalt,'  or  'Institution  for  the  protection  of  rights,'  as 
it  has  not  inaptly  been  described.  It  is  however  no  part 
of  our  undertaking  to  discuss  the  question  how  far  Law 
may  properly  go  in  its  endeavours  to  promote  the  well- 
being  of  those  within  its  sphere.  The  merits  of  a  paternal 
government,  of  centralisation,  of  factory  acts,  of  State 
churches,  are  topics  for  the  pohtician  rather  than  the 
jurist  ^ 

Jurisprudence  is  concerned  not  so  much  with  the  pur- Rights, 
poses  which  Law  subserves,  as  with  the  means  by  which 
it  subserves  them.  The  purposes  of  Law  are  its  remote 
objects.  The  means  by  which  it  effects  those  purposes 
are  its  immediate  objects.  The  immediate  objects  of  Law 
are  the  creation  and  protection  of  legal  rights  * 

'  Works,  ii.  p.  6. 

*  Obs.  de  Princ.  luris,  §  ii,  Opera,  ed.  Deutens,  t.  iv.  p.  272.  Cf.  Portalis, 
Discours  preliminaire  sur  le  Code  Civil. 

*  With  the  advance  of  civihsation  the  State  naturally  extends  the 
sphere  of  its  activity.  It  is  represented  by  some  writers  as  having  been 
successively  devoted  to  War,  to  Law,  and  to  Culture  and  Well-being. 
The  danger  of  a  State  which  has  attained  this  last  stage  is  its  tendency 
towards  Communism.  For  an  attack  upon  this  tendency,  amounting  to 
an  attack  upon  anything  like  a  '  Kultur-  oder  Wohlfahrtstaat,'  see  Her- 
bert Spencer,  The  Man  versus  the  State,  1884. 

*  The  creation  and  enforcement  cf  legal  duties  is  of  course  the  same 
thing  from  another  point  of  view;  and  a  point  of  view  from  which  some 
writers  prefer  to  regard  the  operation  of  Law.   Cf.  infra,  p.  83. 


CHAPTER   VII. 

RIGHTS. 

A  right  What  then  is  a    '  legal  right '  ?    But  first,  what  is  a 

generally. 

right  generally  r 

It  is  one  man's  capacity  of  influencing  the  acts  of 
another,  by  means,  not  of  his  own  strength,  but  of  the 
opinion  or  the  force  of  society. 

When  a  man  is  said  to  have  a  right  to  do  anything, 
or  over  anything,  or  to  be  treated  in  a  particular  manner, 
what  is  meant  is  that  public  opinion  would  see  him  do 
the  act,  or  make  use  of  the  thing,  or  be  treated  in 
that  particular  way,  with  approbation,  or  at  least  with 
acquiescence;  but  would  reprobate  the  conduct  of  any 
one  who  should  prevent  him  from  doing  the  act,  or 
making  use  of  the  thing,  or  should  fail  to  treat  him  m 
that  particular  way. 

A  'right'  is  thus  the  name  given  to  the  advantage 
a  man  has  when  he  is  so  circumstanced  that  a  general 
feeling  of  approval,  or  at  least  of  acquiescence,  results 
when  he  does,  or  abstains  from  doing,  certain  acts  and 
when  other  people  act,  or  forbear  to  act,  in  accordance 
with  his  wishes;  while  a  general  feeling  of  disapproval 


A   LEGAL   RIGHT.  79 

results  when  any  one  prevents  him  from  so  doing  or  chap.  vii. 
abstaining  at  his  pleasure,  or  refuses  to  act  in  accord- 
ance with  liis  wishes.  Further  than  this  we  need  not 
go.  It  is  for  Psychology  to  inquire  by  what,  if  any, 
special  faculty  the  mind  is  capable  of  affirming  or  deny- 
ing the  existence  of  rights.  History  may  also  to  some 
extent  unravel  for  us  the  growth  of  such  conceptions 
as  to  rights  as  are  now  prevalent ;  and  these  are  among 
the  most  vexed  questions  of  Psychology  and  of  the 
History  of  Civihsation  respectively.  Jurisprudence  is 
absolved  from  such  researches.  The  only  conception  of  a 
Right  which  is  essential  to  her  arguments  is  that  which 
we  have  already  propounded,  and  about  the  truth  of 
which,  as  far  as  it  goes,  there  can  be  no  question. 

Jurisprudence  is  specifically  concerned  only  with  such  A  legal 
rights  as  are  recognized  by  law  and  enforced  by  the 
power  of  a  State.  We  may  therefore  define  a  'legal 
right,'  in  what  we  shall  hereafter  see  is  the  strictest 
sense  of  that  term,  as  a  capacity  residing  in  one  man 
of  controlling,  with  the  assent  and  assistance  of  the 
State,  the  actions  of  others. 

That  which  gives  validity  to  a  legal  right  is,  in  every 
case,  the  force  which  is  lent  to  it  by  the  State.  Any- 
thing else  may  be  the  occasion,  but  is  not  the  cause, 
of  its  obligatory  character  \  » 

Sometimes  it  has  reference  to  a  tangible  object.  Some- 
times it  has  no  such  reference.  Thus,  on  the  one  hand, 
the  ownership  of  land  is  a  power  residing  in  the  land- 
owner, as  its  subject,  exercised  over  the  land,  as  its 
object,  and  available  against  all  other  men.  So  a  father 
has  a  certain  power,  residing  in  himself  as  its  subject 
and    exercised    over    his    child    as    its    object,    available 


^  As  Thomasius  says  of  '  Pactum,'  'non  est  causa  sed  tantum  occasio 
obligationis.'  Tlie  contrary  view  is  strongly  put  by  Demburg,  Lehrbuch, 
§39:  'Die  Rechtsordnung  gewahrleistet  und  modelt  die  Rechte  im 
subjectiven  Sinne,  aber  sie  ist  nicht  ihr  Schopfer.' 


8o 


RIGHTS. 


Ambigu- 
ous uses 
of  the 
term. 


against  all  the  world  besides.  On  the  other  hand,  a 
servant  has  a  power  residing  in  himself  as  its  subject,  over 
no  tangible  object,  and  available  only  against  his  master 
to  compel  the  payment  of  such  wages  as  may  be  due 
to  him. 

This  simple  meaning  of  the  term  'a  right'  is  for  the 
purposes  of  the  jurist  entirely  adequate.  It  has  how- 
ever been  covered  with  endless  confusion  owing  to  its 
similarity  to  '  Right ' ;  an  abstract  term  formed  from 
the  adjective  'right,'  in  the  same  way  that  'Justice'  is 
formed  from  the  adjective  'just.'  Plence  it  is  that  Black- 
stone  actually  opposes  'rights'  in  the  sense  of  capacities, 
to  'wrongs'  in  the  sense  of  'unrighteous  acts^' 

We  in  England  are  happily  spared  another  ambiguity 
which  in  many  languages  besets  the  phrase  expressing 
'a  right.'  The  Latin  'lus,'  the  German  'Recht,'  the 
Italian  'Diritto,'  and  the  French  'Droit'  express  not 
only  'a  right'  but  also  'Law'  in  the  abstract.  To  ex- 
press the  distinction  between  'Law'  and  'a  right'  the 
Germans  are  therefore  obliged  to  resort  to  such  phrases 
as  'objectives'  and  'subjectives  Recht,'  meaning  by  the 
former.  Law  in  the  abstract,  and  by  the  latter,  a  concrete 
right.  And  Blackstone,  paraphrasing  the  distinction 
drawn  by  Roman  law  between  the  'ius  quod  ad  res' 
and  the  'ius  quod  ad  personas  pertinet,'  devotes  the 
first  and  second  volumes  of  liis  Commentaries  to  the 
'Rights  of  Persons'  and  the  'Rights  of  Things,'  re- 
spectively. 


R'^sulting. 
confusion 


If  the  expression  of  widely  different  ideas  by  one  and 
the  same  term  resulted  only  in  the  necessity  for  these 
clumsy  periphrases,  or  obviously  inaccurate  paraphrases, 
no  great  harm  would  be  done ;  but  unfortunately  the 
identity  of  terms  seems  irresistibly  to  suggest  an  identity 

'  The  absurdity  is  carried  a  step  further  by  people  who  write  to  the 
newspapers  about  '  copy-riglits  and  copy -wrongs.' 


DEFINITIONS.  8l 

between  the  ideas  which  are  expressed  by  them.  German  chap.  vn. 
writers  have  evidently  the  greatest  difficulty  in  keeping 
apart  Law  and  the  rights  which  it  is  the  business  of 
Law  to  regulate.  Jurisprudence  is  with  them  indifferently 
the  'science  of  rights'  and  th6  'science  of  Law.'  To 
this  source  of  confusion  they  add  that  which  has 
already  been  indicated  as  hieing  a  hindrance  to  our- 
selves. They  have  a  vague  impression  of  a  more  than 
merely  etymological  connection  between  'a  right'  and 
the  eulogistic  adjective  'right.' 

The   following  are  definitions   of  'a   right'  by  various Defini- 
,,  tions. 

authors:  — 

'  Potentia  Boni,  lustitiae  regulis  consentanea.'  —  Zouche  \ 

'  Qualitas  ilia  moralis  qua  recte  vel  personis  imperamus 
vel  res  tenemus,  aut  cuius  vi  aUquid  nobis  debetur.'  — 
Puffendorffl 

'Quaedam  potentia  moralis.'  —  Leibnitz  ^ 

'Qualitas  moralis  activa  ex  concessione  superioris 
personae  competens  ad  aliquid  ab  altero  homine  cum 
quo  in  societate  vivit  iuste  habendum  vel  agendum.'  — 
Thomasius  *. 

'Die  Befugniss  zu  zwingen.'  —  Kant^ 

'Eine  physische  Macht,  welche  durch  die  Gebote  der 
Autoritat  nicht  allein  sittlich  verstarkt  ist,  sondern  welche 
auch  diese  ihre  Macht  durch  Anwendung  von  Zwang 
Oder  Uebel  gegen  den  Verletzer  schiitzen  kann.'  — 
Kirchmann  ®. 


'  Elementa  luris,  p.  19.  ^  De  I.  Nat.  et  Gent.  i.  c.  i.  20. 

^  Opera,  i.  p.  118.  *  lurispr.  Div.  lib.  iii.  c.  i.  i.  82. 

^  'The  authority  to  compel.'   Rechtslehre,  Werke,  vii.  p.  29. 

"  '  A  physical  power,  which  through  the  precepts  of  the  authority  not 
only  is  morally  strengthened,  but  also  can  protect  this  its  power  against  a 
transgressor  by  the  application  of  compulsion  or  evil.'  DieGrundbegriffe, 
des  Rechts  und  der  Moral,  p.  in. 


82  RIGHTS. 

CHAP.  vii.  *  Eine  Macht  iiber  einen  Gegenstand,  der  vermoge  dieses 
Rechts  dem  Willen  des  Berechtigten  unterworfen  ist.'  — 
Puchta\ 

'  Ein  rechtlich  geschiitztes  Interesse.'  —  Ihering  ^ 

Explana-  It  may  be  as  well  to  re-state  in  a  few  words  precisely 

right.  what  we  mean  by  saying  that  any  given  individual  has 

'a  right.' 

If  a  man  by  his  own  force  or  persuasion  can  carry 
out  his  wishes,  either  by  his  own  acts,  or  by  influencing 
the  acts  of  others,  he  has  the  'might'  so  to  carry  out 
his  wishes. 

If,  irrespectively  of  having  or  not  having  this  might, 
public  opinion  would  view  with  approval,  or  at  least 
with  acquiescence,  his  so  carrying  out  his  wishes,  and 
with  disapproval  any  resistance  made  to  his  so  doing; 
then  he  has  a  'moral  right'  so  to  carry  out  his  wishes. 

If,  irrespectively  of  his  having,  or  not  having,  either 
the  might,  or  moral  right  on  his  side,  the  power  of  the 
State  will  protect  him  in  so  carrying  out  his  wishes,  and 
will  compel  such  acts  or  forbearances  on  the  part  of 
other  people  as  may  be  necessary  in  order  that  his  wishes 
may  be  so  carried  out,  then  he  has  a  'legal  right'  so  to 
carry  out  his  wishes. 

If  it  is  a  question  of  might,  all  depends  upon  a  man's 
own  powers  of  force  or  persuasion.  If  it  is  a  question 
of  moral  right,  all  depends  on  the  readiness  of  public 
opinion  to  express  itself  upon  his  side.  If  it  is  a  question 
of  legal  right,  all  depends  upon  the  readiness  of  the 
State  to  exert  its  force  on  his  behalf.  It  is  hence  obvious 
that  a  moral  and  a  legal  right  are  so  far  from  being 
identical  that  they  may  easily  be  opposed  to  one  another. 

*  *  A  power  over  an  object,  which  by  means  of  this  right  is  subjected  to 
the  will  of  the  person  enjoying  the  right.'   Instit.  ii.  p.  393. 

'  'A  legally  protected  interest.'  Geist  des  romischen  Rechtes,  iii.  §  60. 


RIGHT   AND    DUTY.  83 

Moral  rights  have,  in  general,  but  a  subjective  support,  chap.  vii. 
legal  rights  have  the  objective  support  of  the  physical 
force  of  the  State.  The  whole  purpose  of  laws  is  to 
announce  in  what  cases  that  objective  support  will  be 
granted,  and  the  manner  in  which  it  may  be  obtained. 
In  other  words.  Law  exists,  as  was  stated  previously,  for 
the  definition  and  protection  of  rights. 

Every  right,  whether  moral  or  legal,  implies  the  active  Of  a  duty, 
or  passive   furtherance  by  others  of  the  wishes  of    the 
party  having  the  right.    Wherever  any  one  is  entitled  to 
such  furtherance  on  the  part  of  others,  such  furtherance 
on  their  part  is  said  to  be  their  'duty.' 

Where  such  furtherance  is  merely  expected  by  the 
public  opinion  of  the  society  in  which  they  live,  it  is 
their  '  moral  duty.' 

Where  it  will  be  enforced  by  the  power  of  the  State 
to  which  they  are  amenable,  it  is  their  'legal  duty.' 

The  correlative  of  might  is  necessity,  or  susceptibility 
to  force;  of  moral  right  is  moral  duty;  of  legal  right 
is  legal  duty.  These  pairs  of  correlative  terms  express, 
it  will  be  observed,  in  each  case,  the  same  state  of  facts 
viewed  from  opposite  sides. 

A  state  of  facts  in  which  a  man  has  within  himself 
the  physical  force  to  compel  another  to  obey  him,  may 
be  described  either  by  saying  that  A  has  the  might  to 
control  B,  or  that  B  is  under  a  necessity  of  submitting 
to  A.  So  when  pubUc  opinion  would  approve  of  A  com- 
manding and  of  B  obeying,  the  position  may  be  described 
either  by  saying  that  A  has  a  moral  right  to  command, 
or  that  B  is  under  a  moral  duty  to  obey.  Similarly, 
when  the  State  will  compel  B  to  carry  out,  either  by  act 
or  forbearance,  the  wishes  of  A,  we  may  indifferently 
say  that  A  has  a  legal  right,  or  that  B  is  under  a  legal 
duty. 

It  is  unimportant  in  theory  whether  a  system  of  law 

G2 


84  RIGHTS. 

CHAP.  vii.  starts  with  a  consideration  of  rights  or  of  duties.  It  is 
important  only  that  whichever  point  of  view  be  adopted 
should  be  consistently  adhered  to.  We  shall  take  Rights 
rather  than  Duties  as  the  starting-point  of  our  classifica- 
tion, although  some  authority  may  be  adduced  in  favour 
of  the  opposite  method  \ 

The  rela-  Law  has  been  for  centuries  described  as  a  '  command,' 

to  rights.  l>ut  this  description,  though  essentially  true,  is  inadequate 
to  the  extent  of  being  misleading,  Austin,  who  very 
properly  analyses  a  command  into  (i)  a  desire  conceived 
by  one  rational  being  that  another  rational  being  should 
do  or  forbear,  (2)  an  evil  to  proceed  from  the  former 
and  to  be  incurred  by  the  latter  in  case  of  non-com- 
pliance with  the  wish,  and  (3)  an  expression  of  the  Avish 
by  words  or  other  signs,  is  unable  to  discover  these 
characteristics  in  laws  which  are  merely  declaratory,  or 
which  repeal  pre-existing  law,  or  which,  because  they 
can  be  disobeyed  with  impunity,  are  said  to  be  'of  im- 
perfect obligation^.'  Similar  difficulties  have  been  raised 
by  Austin's  critics  with  reference  to  other  classes  of 
laws :  by  Mr.  Frederic  Harrison,  for  instance,  with  refer- 
ence to  enabling  statutes,  laws  conferring  franchises,  and 
rules  of  interpretation  or  of  procedure  ^ 

Such  cases  will  however  cease  to  be  anomalous  if  we 
recognise  that  every  law  is  a  proposition  announcing 
the  will  of  the  State,  and  implying,  if  not  expressing, 
that  the  State  will  give  effect  only  to  acts  which  are  in 
accordance  with  its  will,  so  announced,  while  it  will 
punish,  or  at  least  visit  with  nullity,  any  acts  of  a  con- 
trary character.  The  State  thus  makes  known  what 
advantages  it  will    protect  as    being    legal    rights,  what 


'  See  Bentham,  Works,  iii.  p.  181;  Comte,  Phil.  pos.  ed.  2,  vi.  p.  454; 
Am.  Law  Review,  vii.  p.  46.  Prof.  Terry,  formerly  of  Tokio,  Some  Leading 
Principles  of  Anglo-American  Law,  combines  the  two  methods. 

*  Jurisprudence,  Lect.  i.  *  Fortnightly  Review,  1878,  p.  684. 


LAW  AND   RIGHT.  8$ 

disadvantages  it  will  enforce  as  being  legal  duties,  and    chap.  vn. 
what  methods  it  will  pursue  in  so  doing. 

The  announcement  may  be.  made  in  many  different 
ways.  A  law  may  be  imperative,  as  'Honour  thy  father 
and  thy  mother ' ;  but  it  may  also  be  in  the  indicative 
mood,  as  '  No  contract  for  the  sale  of  any  goods,  wares 
and  merchandises,  for  the  price  of  £10  sterling  or  up- 
wards, shall  be  allowed  to  be  good,  except  the  buyer 
shall  accept  part  of  the  goods  so  sold,  and  actually 
receive  the  same,  or  give  something  in  earnest  to  bind 
the  bargain,  or  in  part  of  payment,  or  that  some  note 
or  memorandum  in  writing  of  the  said  bargain  be  made 
and  signed  by  the  parties  to  be  charged  by  such  con- 
tract, or  their  agents  thereunto  lawfully  authorised ' ;  or 
'From  and  after  the  commencement  of  this  Act  the 
several  jurisdictions  which  by  this  Act  are  transferred 
to  and  vested  in  the  said  High  Court  of  Justice  and 
the  said  Court  of  Appeal  respectively  shall  cease  to  be 
exercised,  except  by  the  said  High  Court  of  Justice  and 
the  said  Court  of  Appeal  respectively,  as  provided  by 
this  Act.' 

The  real  meaning  of  all  Law  is  that,  unless  acts  con- 
form to  the  course  prescribed  by  it,  the  State  will  not 
onlj'^  ignore  and  render  no  aid  to  them,  but  will  also, 
either  of  its  own  accord  or  if  called  upon,  intervene  to 
cancel  their  effects.  This  intervention  of  the  State  is 
what  is  called  the  'sanction'  of  law\  It  is  true  that 
the  State  intervenes  not  only  with  a  view  to  punishment, 
and  occasionally  to  prevent  anticipated  illegality,  but  also 
to  effect  restitution,  and  this  is  perhaps  its  principal 
function;  but  before  the  commission  of  the  wrong  the 
announcement  of  State  intervention  in  case  of  its  com- 
mission operates  upon  the  general  mind  by  way  of  threat 
of  punishment.    It  is  a   punishment  to  a  wrongdoer,  or 

^ '  Legum  eas  partes  quibus  poenas  constituimus  adversus  eos  qui  contra 
leges  fecerint,  sanctiones  vocamus.'   lust.  Inst.  ii.  i.  lo. 


86 


RIGHTS. 


Substan- 
tive and 
Adjective 
Law. 


to  one  who  neglects  to  comply  with  prescribed  courses 
of  procedure,  if  his  wrong  be  merely  undone,  or  his 
faulty  procedure  fails  of  its  effect,  so  that  he  has,  as 
the  saying  goes,  'his  trouble  for  his  pains.'  Law  is,  in 
fact,  formulated  and  armed  public  opinion,  or  the  opinion 
of  the  ruling  body.  It  announces  not  only  that  certain 
states  of  things  and  courses  of  action  are  viewed  by  it 
with  favour,  but  also  that,  in  case  of  the  invasion  of 
these  states  of  things,  or  in  case  of  contrary  courses  of 
action  being  pursued,  it  will  not  only  look  on  with  dis- 
favour, but  will  also,  in  certain  events,  actively  intervene 
to  restore  the  disturbed  balance. 

It  defines  the  rights  which  it  will  aid,  and  specifies 
the  way  in  which  it  will  aid  them.  So  far  as  it  defines, 
thereby  creating,  it  is  'Substantive  Law.'  So  far  as 
it  provides  a  method  of  aiding  and  protecting,  it  is 
*  Adjective  Law,'  or  Procedure. 


CHAPTER  VIII. 

ANALYSIS    OF  A    RIGHT. 

We  have  seen  that  a  'moral  right'  implies  the  exis- 
tence of  certain  circumstances,  with  reference  to  which 
a  certain  course  of  action  is  viewed  with  general  approba- 
tion, and  the  contrary  course  with  disapprobation;  that 
a  'legal  right'  exists  where  the  one  course  of  action 
is  enforced,  and  the  other  prohibited,  by  that  organised 
society  which  is  called  'the  State.' 

We  have  next  to   consider   more   particularly   what   is  The 
the   character  of    those    elements    from    which    a    Right  ^f  ^  right, 
results. 
They  are : 

(0  A  person  'in  whom  the  right  resides,'  or  'who 
is  clothed  with  the  right,'  or  who  is  benefited 
by  its  existence. 

(2)  In   many   cases,  an  object   over  which  the  right 

is  exercised. 

(3)  Acts  or  forbearances  which  the  person  in  whom 

the  right  resides  is  entitled  to  exact, 

(4)  A  person  from  whom  these  acts  or  forbearances 

can  be  exacted;  in  other  words,  against  whom 
the  right  is  available ;  in  other  words,  whose 
duty  it  is  to  act  or  forbear  for  the  benefit  of 
the  subject  of  the  right. 


88 


ANALYSIS    OF   A   RIGHT. 


CHAP.  viii.       The    series    of    elements   into   which  a   Right  may  be 
resolved  is  therefore: 

The  Person  I  The  Object.  I         The  Act        I  The  Person 
entitled.   |  |  or  Forbearance.  |     obliged. 


A  series 
of  four 
terms. 


Proposed 
termin- 
ology. 


It  will  be  observed  that  the  first  and  the  last  terms 
of  the  series  are  a  person.  The  second  term  is  the  object 
,  of  the  right  (whether  it  be  a  physical  thing,  or  what 
the  law  chooses  to  treat  as  such)  if  any  (for  there  exist 
large  classes  of  rights  which  have  reference  to  no  object, 
either  physical  or  assimilated  to  such);  and  the  third 
term  is  made  up  of  the  acts  or  forbearances  to  which 
the  person  in  the  fourth  term  is  bound. 

It  will  be  convenient  to  call  the  person  entitled  'the 
person  of  inherence ' ;  and  the  person  obliged,  '  the  person 
of  incidence.'  The  intermediate  terms  may  be  shortly 
referred  to  as  'the  object'  and  'the  act'  respectively. 

That  this  series  is  no  technical  abstraction  but  a  simple 
formula  for  the  representation  of  the  indisputable  elements 
of  a  right,  may  be  more  apparent  from  an  example.  A 
testator  leaves  to  his  daughter  a  silver  tea-service.  Here 
the  daughter  is  the  '  person  of  inherence,'  i.  e.  in  whom 
the  right  resides;  the  tea-service  is  the  'object'  of  the 
right ;  the  delivery  to  her  of  the  tea-service  is  the  '  act ' 
to  which  her  right  entitles  her;  and  the  executor  is 
the  'person  of  incidence,'  i.  e.  the  person  against  whom 
her  right  is  available.  Or  take  an  example  of  a  right 
where,  as  we  stated  to  be  often  the  case,  the  second 
term  of  the  series  is  wanting.  B  is  A's  servant.  Here 
A  is  the  'person  of  inherence,'  reasonable  service  is  the 
'act'  to  which  he  is  entitled,  and  B  is  the  'person  of 
incidence,'  against  whom  the  right  is  available.  The 
nature  of  the  right  varies  with  a  variation  in  any  one 
of  the  four  terms  which  are  implied  in  it,  and  the 
variations  in  the  nature  of  the  right  give  rise  to  the 
main  heads  or  departments  of  law. 


PERSONS.  89 

The  preceding  analysis  of  the  nature  of  a  right  implies  chap.  vm. 
the  ideas  of  'Person,'  'Thing,'  and  'Act.'  These  are  the 
permanent  phenomena  of  a  right;  its  statical  elements. 
A  right,  conceived  of  as  at  rest,  postulates  —  a  Person  of 
inherence  and  a  Person  of  incidence;  Acts  to  which  the 
former  is  entitled,  and  which  the  latter  is  obliged  to 
perform;  and  often,  though  not  always,  an  Object  or 
Thing. 

But  if    the  right    is  put   in  motion,  phenomena  of    a  Facts, 
new  kind  intervene.    They  are  shifting,  dynamical,  and 
may  be  expressed  by  the  general  term  '  Facts ' ;    under 
which  are  included,  not  only  the  'Acts'  of  persons,  but 
also  the  'Events'  which  occur  independently  of  volition. 

It  is,  as  we  have  seen,  by  'Acts'  that  rights  are  en- 
joyed. And  we  shall  see  that  it  is  through  the  agency 
of  'Acts'  or  of  'Events'  that  rights  are  created,  trans- 
ferred, transmuted,  and  extinguished.  In  order  therefore 
to  understand,  not  only  the  nature  of  a  right  and  the 
mode  of  its  enjoyment,  but  also  the  manner  of  its  crea- 
tion, transfer,  and  extinction,  it  is  necessary  to  acquire 
clear  ideas  of  the  full  meaning  of  the  following  terms :  — 

I.  Person. 
II.  Thing. 
III.  Fact,  under  which  term  are  included  — 
Event, 
Act,  of  omission  as  well  as  of  commission. 

With  reference  to  the  important  term  '  Act '  it  is  neces- 
sary to  consider  the  relations  of  the  will  to  its  conscious 
exertion  and  its  expression.  It  will  also  be  necessary 
to  classify  acts. 

I.  A  '  Person '  is   often  defined  as  being    the  '  Subject,  Person, 
or  Bearer,  of  a  right^';  but  this  is  to  narrow  the  signi- 
ficance of  the  term.    Rights  not  only  reside  in,  but  also 

*  E.  g.  Savigny,  System,  ii.  p.  i;  Puchta,  Inst,  ii-  p.  291, 


90  ANALYSIS   OF   A   RIGHT. 

CHAP.  VIII.  are  available  against,  persons.  In  other  words,  there  are 
persons  of  incidence  as  well  as  of  inherence.  Persons 
are  the  subjects  of  Duties  as  well  as  of  Rights.  In 
persons  rights  inhere,  and  against  them  rights  are  avail- 
able. For  the  benefit  of  persons  duties  are  created,  and 
it  is  on  persons  that  duties  are  imposed. 

Persons,  i.  e.  subjects  of  Rights  or  of  Duties,  are  in 
general  individual  human  beings;  but,  in  imitation  of 
the  personality  of  human  beings,  the  law  recognises 
certain  groups,  of  men  or  of  property,  which  it  is  con- 
venient to  treat  as  subjects  of  rights  and  duties;  as 
Persons  in  an  artificial  sensed 

Natural  i.  A  'natural,'  as  opposed  to  an   'artificial,'  person  is 

'  such  a  human  being  as  is  regarded  by  the  law  as 
capable  of  rights  or  duties:  in  the  language  of  Roman 
law  as  having  a  'status.'  As  having  any  such  capacity 
recognised  by  the  law,  he  is  said  to  be  a  person,  or,  to 
approach  more  nearly  to  the  phraseology  of  the  Roman 
lawyers,  to  be  clothed  with,  or  to  wear  the  mask  (persona) 
of  legal  capacity  ^ 

Besides  possessing  this  general  legal  capacity,  or  status, 
a  man  may  also  possess  various  special  capacities,  such 
as  the  'tria  capita'  of  liberty,  citizenship,  and  family 
rights.  A  slave  having,  as  such,  neither  rights  nor 
liabilities,  had  in  Roman  law,  strictly  speaking,  no  '  status,' 
'caput,'  or  'persona.'  'Pro  nullo  isti  habentur  apud 
praetorem,'  says  Ulpian^  On  the  day  of  his  manu- 
mission, says  Modestinus,  '  incipit  statum  habere  ^'  Before 
manumission,  as  we  read  in  the  Institutes  'nullum  caput 

habuit^'       So     Theophilus:      ol     olKeroL     dTrpoo-wTrot     on-cs     eV 

•Thus  Ulpian  opposes  'j)ersonae  singulares'  to  'populus,'  'curia,' 
'collegium'  or  'corpus.'   Dig.  iv.  2.  9.  i. 

*  Cf.  Cic.  de  Off.  i.  cc.  30,  32.  The  equivalent  of '  persona'  in  the  Insti- 
tutes of  Theophilus  is  irp<Jo-<ii»iroi/. 

^  Dig.  xxviii.  8.  i. 

*  Dig.  iv.  5.  4.  '  i.  16. 


NATURAL   PERSONS.  91 

Twv     TrpoawTToyv      twi/      oIkclwv     Sea-jroTwv      )(apaKTr]pi^ovTaL  *.       It    CHAP.  Vlll. 

must  however  be  remembered  that  the  terms  'persona' 
and  '  caput '  were  also  used  in  popular  language  as  nearly 
equivalent  to  'homo,'  and  in  this  sense  were  appUed  to 
slaves  as  well  as  to  freemen^.  Many  writers  have  sup- 
posed that  Roman  law  recognised,  besides  the  '  tria  capita ' 
which  they  distinguish  as  'status  civiles,'  innumerable 
varieties  of  status,  depending  upon  age,  health  and 
similar  circumstances,  which  they  describe  as  'status 
naturales.'  This  view  finds  now  little  favour  ^ ;  but  the 
modern  employment  of  the  term  'status'  in  this  flexible 
sense,  apart  from  any  supposed  authority  for  it  in  the 
law  of  Rome,  is  both  common  and  convenient  \  It  is 
true  to  say  that  'unus  homo  plures  sustinet  personas,' 
i.  e.  one  individual  may  be  clothed  with  different  kinds 
of  legal  capacities '.  A  natural  person  is  therefore  well 
defined  as  'homo  cum  statu  suo  consideratus ".' 

A  natural  person  must  combine  the  following  character-  Character- 
istics:-  ^^*^^^f- 

(i)  He    must  be   a  living    human  being:    i.  e.   (a)    he 
must  be  no  monster  ^     (b)  He  must  be  born  alive  (vivus)  ^ 


*  iii.  17;  cf.  ii.  14.  'Servos  quasi  nee  personam  habentes.'  Nov.  Theod. 
tit.  44.  '  Servos  qui  personam  legibus  non  habebant.'  Cassiodor.  Var. 
vi.  8.  '  O  Sov\os  iraph  rots  v6fMis  a.Trp6aanr6s  iari,  rovriffriv  ou5^  ZoKfi  (,t\v  ^ 
avftpai.  Theodor.  Herm.  vii.  6.  'Perfortunam  in  omnia obnoxii,  tamen 
quasi  secundum  hominum  genus  sunt.'    Florus,  Hist.  iii.  20. 

'  Cf.  Cic.  de  Off.  i.  30-34,  de  Orat.  ii.  24  ;  Gai.  Inst.  i.  9;  Dig.  iv.  5.  3, 
1.  17.  22. 

^  Cf.  Savigny,  System,  ii.  Append,  p.  445;   Baron,  Pandekten,  §  26. 

*  '  The  status  of  an  individual,  used  as  a  legal  term,  means  the  legal 
position  of  the  individual  in,  or  with  regard  to,  the  rest  of  the  com- 
munity.'   Brett  L.  J.  in  Niboyet  v.  Niboyet,  L.  R.  4  P.  D.  (C.  A.)  i. 

*  '  Tres  personas  unus  sustineo.'   Cic.  de  Orat.  i.  40. 

*  '  Status '  is  defined  by  Heineccius  as  '  qualitas  cuius  ratione  homines 
diverso  iure  utuntur,'  Recit.  i.  tit.  3;  and  'persona'  by  Muhlenbruch  as 
'potestas  iuris,  sive  facultas,  et  iurium  exercendorum  et  officiorum 
subeundorum,  hominibus  iure  accommodata  et  quasi  imposita.'  Doct. 
Pand.  ii.  i.   Cf.  Austin,  Lect.  xl,  xli. 

^  Dig.  i.  5.  14,  1.  16.  38;  Cod.  vi.  29.  3;  Co.  Litt.  7  b,  29  b. 

*  Dig.  1.  16.  129. 


92  ANALYSIS    OF   A   RIGHT. 

CHAP.  viii.  though  not  necessarily  capable  of  contmued  existence 
(vitalis)\  But  for  certain  purposes  existence  begins 
before  birth.  '  Qui  in  utero  est  perinde  ac  si  in  rebus 
humanis  esset  custoditur,  quotiens  de  commodis  ipsius 
partus  quaeritur,'  says  Paulus^.  So  Blackstone:  'An 
infant  in  ventre  sa  mere  is  supposed  to  be  born  for 
many  purposes.  It  is  capable  of  having  a  legacy,  or  a 
surrender  of  a  copyhold  estate  made  to  it.  It  may  have 
an  estate  assigned  to  it;  and  it  is  enabled  to  have  an 
estate  limited  to  its  use,  and  to  take  afterwards  by  such 
limitation  as  if  it  were  then  actually  born^'  (c)  On 
the  other  hand,  he  must  not  have  ceased  to  hve.  He 
need  not  be  rational. 

(2)  He  must  be  recognised  by  the  State  as  a  person; 
so  must  not  be  a  slave  in  the  absolute  control  of  his 
master,  a  'caput  lupinum,'  or  otherwise  civilly  dead,  as 
was  in  English  law  a  man  who  was  banished,  or 
abjured  the  realm,  or  who  'entered  into  reUgion'  as 
a  professed  monk,  when,  says  Blackstone,  'he  might,  like 
other  dying  men,  make  his  testament  and  executors;  or 


*  Dig.  XXV.  4.  1, 1.  16,  129;  but  by  the  Code  Civil,  art.  725,  'I'enfant 
qui  n'est  pas  n6  viable '  is  incapable  of  succession. 

*  Dig.  i.  5.  7.  A '  curator  ventris'  might  be  appointed  to  look  after  its 
interests.    Dig.  37.  9. 

*  I  Comm.  130.  By  the  Code  Civil,  art.  906,  '  pour  etre  capable  de 
recevoir  entre-vifs,  il  suffit  d'etre  congu  au  moment  de  la  donation;  pour 
fetre  capable  de  recevoir  par  testament,  il  suffit  d'etre  congu  a  I'epoque  du 
d^es  du  testateur.'  Cf.  German  Civil  Code,  §  1923.  By  the  Prussian 
Landrecht,  Pt.  i,  vol.  i,  §  10,  'the  general  rights  of  humanity'  attach  to 
a  child  from  the  moment  of  conception.  Mr.  Justice  Holmes  has  kindly 
called  my  attention  to  a  case  in  which  an  action  was  unsuccessfully 
brought  by  the  administrator  of  a  foetus  for  the  injury  to  the  mother 
which  had  caused  its  premature  birth  and  almost  simultaneous  death. 
Dietrich  v.  Northampton,  138  Mass.  14,  S.  C.  52  Am.  Rep.  243.  Cf. 
Walker  v.  Gt.  N.  Ry.  of  Ireland,  28  L.  R.  Ir.  69,  and  an  article  on 
'  Unborn  children  and  their  rights,'  in  26  Am.  Law  Review  (1892),  p.  50. 
See  also  Villar  v.  Gilbey  [1905],  2  Ch.  301.  It  would  seem  that  a  child 
whose  father  at  its  conception  was  Belgian  but  before  its  birth  had  become 
an  alien,  may  elect,  on  attaining  majority,  for  Belgian  nationality.  Hall, 
Foreign  Jurisdiction,  p.  64  n. 


ARTIFICIAL   PERSONS.  93 

if  he  made  none,  the  ordinary   might  grant   administra-    chap.  vm. 
tion    to  his   next  of  kin,  as   if    he  were   actually   dead 
intestate  \' 

Any  individual  combining  these  two  characteristics  is 
a  'person,'  i.e.  is  capable  of  rights  and  liable  to  duties. 
He  may  otherwise  be  said  to  sustain  a  personality;  and 
the  same  man  may  sustain  different  personalities,  as  an 
actor  may  play  in  several  masks,  or  parts. 

The  various  degrees  in  which  individuals  who  are 
persons  at  all  are  capable  of  rights  or  liable  to  duties, 
are  determined  by  circumstances  to  which  different  con- 
sequences have  been  attached  by  different  systems  of 
law.  There  are  different  grades  of  personality,  and 
these  depend  upon  the  freedom,  the  maturity,  the  sex, 
the  sanity,  the  citizenship,  and  so  forth,  of  the  individual  ^ 
As  to  freedom,  for  instance,  a  serf,  not  absolutely  at 
the  disposal  of  his  master,  might  be  said  to  have  a 
personality,  though  a  Hmited  one.  As  to  maturity, 
distinctions  have  been  drawn  depending  sometimes  on 
physical  development,  sometimes  on  the  fulness  of  the 
reasoning  powers. 

ii,   '  Artificial,'  '  conventional,'  or   '  juristic '   persons,   are  Artificial 
,  «    ,  ,    .  J,  ,  persons, 

such  groups   of  human  beings  or  masses   of  property  as 

are  in  the  eye  of  the  law  capable  of  rights  and  liabilities, 

in  other  words  to  which  the  law  gives  a  status'. 


•  I  Comm.  132.  'Cum  semel  quis  se  religioni  contulerit  renuntiat 
omnibus  quae  seculi  sunt.'  Bracton,  421  b;  cf.  Co.  Litt.  132  a.  Roman 
law  declared  certain  persons,  e.  g.  'deportati,'  to  be  'mortuorum  loco,' 
Dig.  xxxvii.  4.  1.8,  but  it  did  not  include  among  them  monks  and  nuns, 
Cod.  i.  3.  56.  I,  nor  did  it  employ  the  technical  term  'mors  civilis.'  The 
conception  of '  mort  civile,'  as  a  result  of  conviction,  was  carried  to  great 
lengths  in  France,  where  it  was  e.  g.  applied  to  the  6migr&  in  1792, 
Merlin,  Repertoire,  s.  v.,  but  the  articles  of  the  Code  Civil  dealing  with 
this  subject,  22-33,  have  been  superseded  by  the  law  of  31  May,  1854,  by 
which  'la  mort  civile  est  abolie.'  'Der  biirgerliche  Tod'  is  little  heard 
of  in  Germany. 

^  Cf.  infra,  c.  xiv. 

'  '  Die  juristische  Person  ist  ein  erlaubter,  bleibender  Zweck,  welchem, 


94 


ANALYSIS    OF   A   RIGHT. 


CHAP.  VIII. 


Species  of. 


Requisites 
of. 


Dissolu- 
tion of. 


Such  groups  are  treated  as  being  persons,  or  as  sustain^ 
ing  the  mask  of  personality. 

They  are  of  two  kinds  — 

(i)  '  Universitates  personarum ' ;  such  as,  the  State 
itself ;  departments  or  parishes ;  collegia ;   churches. 

(2)  '  Universitates  bonorum';  such  as,  funds  left  to 
*  pious  uses '  without  a  trustee ;  a  hereditas  before  '  aditio,' 
which  '  personae  vice  fungitur,  sicut  mancipium  et  decuria 
et  societas.'  So  the  estate  of  an  intestate  before  admin- 
istration ;  the  estate  of  a  Bankrupt. 

Such  juristic,  or  artificial,  persons  come  into  being 
when  — 

(i)  There  exists  a  group  of  persons,  or  mass  of  property, 
as  the  case  may  be,  and 

(2)  The  law  gives  to  the  group  or  mass  in  question 
the  character  of  a  person.  'Neque  societas  neque  col- 
legium, neque  huiusmodi  corpus  passim  omnibus  habere 
conceditur :  nam  et  legibus  et  senatus  consultis  et  prin- 
cipalibus  rescriptis  ea  res  coerceturS'  This  may  occur 
by  means  of  either  — 

(a)  A  general  rule,  applicable  wherever  its  conditions 
are  satisfied,  e.g.  'the  Companies  Act,  1862.' 

(b)  A    special   act   of   sovereign   power,   e.  g.    an   in- 
corporating statute,  or  charter. 

A  'universitas  bonorum'  comes  to  an  end  in  ways  too 
numerous  to  specify ;  a  '  universitas  personarum '  comes 
to  an  end  — 

(i)  By  failure  of  its  component  parts.  '  Sed  si  uni- 
versitas ad  unum  redit,  magis  admittitur  posse  eum 
convenire  et  conveniri;  cum  ius  onmium  in  unum  re- 
ciderit,    et    stet    nomen    universitatis  ^.'    The    number    of 


kraft  Rechtsfiction  (zwar  nicht  die  voile  Rechtsfahigkeit,  aber  doch),  die 
Vermogensfahigkeit  zukommt.'  Baron,  Pandekten,  §  30;  v.  infra,  ch. xiv. 

•  Dig.  iii.  4.  i;  cf.  xlvii.  22.  3.  There  is  much  difference  of  opinion  as 
to  the  scope  of  this  rule  of  Roman  law.  Its  stringency  was  undoubtedly 
much  relaxed  by  the  mediaeval  civilians  and  canonists.  V.  infra,  c.  xiv. 

»  Dig.  iii.  4.  7. 


THINGS.  95 

individuals  who  must  necessarily  be  members  of  a  '  uni-   chap.  vm. 
versitas  personarum'  is   often  defined   by  the  instrument 
creating  it. 

(2)  In  consequence  of  judicial  proceedings,  initiated  by 
one  of  the  corporators,  or  otherwise,  as  in  the  winding 
up  of  a  Company. 

(3)  By  forfeiture  of  privileges,  as  was  alleged  in  the 
case  of  the  revocation  of  the  charter  of  the  city  of 
London  by  Charles  II. 

(4)  By  a  surrender  of  its  charter,  such  as  took  place  in 
the  case  of  the  London  College  of  Advocates  in  pursuance 
of  20  and  21  Vict.  c.  77,  s.  117. 

II.  A  *  Thing '  is  the  Object  of  a  Right ;  i.  e.  is  what-  Thing, 
ever  is  treated  by  the  law  as  the  object  over  which  one 
person    exercises    a    right,  and  with  reference  to  which 
another  person  lies  under  a  duty\ 

Of  'Things,'  in  this  sense,  there  are  two  kinds: —  Physical 

(i)  Material    objects,    i.  e.    physical    things,    'res    cor-fj^tu^l. 
porales,'   such  as  a  house,  a  tree,  a   field,  a   horse,  or  a 
slave. 

(2)  Intellectual  objects,  artificial  things,  'res  incor- 
porales,'  '  Rechtsgesammtheiten,'  such  as  a  patent,  a  trade- 
mark, a  copyright,  an  easement,  a  '  hereditas,'  a  bankrupt's 
estate,  a  '  universitas ' ;  i.  e.  groups  of  advantages  which  for 
shortness  are  treated  by  the  law  as  if  they  were  material 
objects. 

So  that,  just  as  we  have  seen  that  what  the  law  means 
by  a  'Person'  is  the  subject  of  a  Right  or  Duty,  irrespec- 
tively of  the  subject  being,  as  is  more  frequently  the 
case,  or  not  being,  a  human  individual ;  so  a  '  Thing '  is 
what    the    law    regards    as    the  Object    of    Rights    and 


'  '  Sache,'  in  this  its  widest  sense,  is  defined  as  '  dasjenige  was  in  sich 
einheitlich  ist  und  einen  bestimmten  Vermogenswerth  hat.'  Baron, 
Pand.  §  37 ;  as  '  alles  was  bios  gegenstandliche  Bedeutung  im  Rechte  hat.' 
Amdts,  Pand.  §  48. 


96 


ANALYSIS   OF   A   RIGHT. 


Deriva- 
tion of 
the  dis- 
tinction. 


CHAP.  viii.   Duties,  irrespectively  of   that  object  being,  as  it  usually 
is,  a  material  object. 

This  artificial  use  of  the  term  '  Thing '  is  not  peculiar 
to  legal  science,  but  was  in  fact  borrowed  by  it  from 
speculative  philosophy.  Cicero,  talking  of  'res'  in  the 
sense  of  objects  of  thought,  says  that  they  are  divisible 
into  '  eae  quae  sunt '  and  '  eae  quae  intelliguntur ' ;  and 
he  happens  to  mention,  as  instances  of  the  latter,  'usu- 
eapio,  gens,  tutela  \'  In  Jurisprudence  the  double  use  of 
the  term  is  at  least  as  old  as  Gains  C  Quaedam  praeterea 
res,'  he  says,  'corporales  sunt,  quaedam  incorporales  .  .  . 
quae  tangi  possunt  .  .  .  quae  in  iure  consistunt ')  ^  and  is 
carried  by  him,  and  by  the  Roman  writers  generally,  to 
perhaps  excessive  lengths,  when  they  extend  this  ficti- 
tious class  so  far  as  to  embrace  even  '  obligations,'  i.  e. 
mere  claims  that  one  man  has  to  control  the  acts  of 
another. 

It  is  no  doubt  convenient  for  the  purposes  of  our  science 
to  include  among  'Things,'  not  only  physical  objects,  but 
also  certain  groups  of  rights,  which,  for  purposes  of 
transfer  and  otherwise,  are  occasionally  treated  as  if 
they  were  physical  objects.  The  fiction  by  which  patents, 
bankrupts'  estates,  or  easements  are  regarded  as  '  Things,' 
is  indeed  not  only  harmless  but  almost  indispensable. 


The  theory  of  this  topic,  as  worked  out  by  the  Roman 
lawyers,  and  more  fully  developed  in  modern  times, 
especially  in  Germany,  is  by  no  means  free  from  difficulty, 
owing  to  considerable  variations  in  the  use  of  terms,  but 
may  be  stated  as  follows :  — 

'Thing'  (Res,  Ding,  Chose)  is  a  term  which,  besides 
its   proper    meaning,   has    also   an   analogical    application. 

^  Top.  c.  5.  Cf. '  ius,  quod  sit  incorporale,  apprehendi  manu  non  posse.' 
Quintil.  V.  10. 

*  So  Theophilus:  afftiftarov  8e'  ianv  h  v^  ft,6v<f  yvupi^frai,  oijre  5«  a(p^ 
oi/Tf  B4a  vToirlirTti  .  .  .  a.adi>ixari  iffrtv  &  iv  Sixalcf)  avviarwrai,  otov  KKripopofxia. 
Inst.  ii.  2. 


CLASSES   OF   THINGS.  97 

In  Jurisprudence  this  analogical  use  is  kept  within  due  chap.  viii. 
bounds.    Legal  science  recognises  'Things'   (Dinge)  only 
so  far  as  they  are  capable  of  standing  in  relation  to  the 
human  WiU   ('Sachen,'   in  the  widest  sense  of  that  term). 
Such  things  are  either  physical  or  artificial 

i.  A    Physical    thing,    'res    corporaHs'    (Sache    in    the  Res  cor- 
narrower,  and  proper,  sense  of  the  term^),  is  sometimes 
defined    as    'a    locally    limited    portion    of    volitionless 
Nature  ^ ' :  perhaps  better  as  '  a  permanent  external  cause 
of  sensations.' 

The  full  meaning  of  any  such  definition  is  of  course 
a  question  not  of  Jurisprudence  but  of  Metaphysics. 
The  jurist  need  not  go  further  than  to  lay  down  that 
a  physical  thing  is  something  which  is  perceptible  by  the 
external  organs  of  sense,  and  is  capable  of  being  so  per- 
ceived again  and  again.  By  the  latter  characteristic  it  is 
distinguished  from  an  '  Event,'  which,  as  a  cause  of  sensa- 
tion, is  transient.  As  Austin  says:  'The  import  of  the 
expression  '"''permanent  sensible  object"  is,  I  think,  this; 
it  denotes  an  object  wliich  is  perceptible  repeatedly^  and 
which  is  considered,  by  those  who  repeatedly  perceive  it, 
as  being  (on  those  several  occasions)  one  and  the  same 
object.  Thus  the  horse  or  the  house  of  to-day  is  the 
horse  or  house  of  yesterday;  in  spite  of  the  intervening 
changes  which  its  appearance  may  have  undergone  ^' 


^  This  tenn  is  said  to  be  strictly  applicable  only  to  corporeal  things,  and 
accordingly  is  so  defined  in  the  new  Civil  Code  for  Germany  (1900),  §  90. 

^  '  Ein  raumlich  begrenztes  Stiick  der  willenlosen  (oder  als  willenlos 
fingirten)  Natur.'  Baron,  Pandekten,  §  37.  Cf. '  Ein  Stiick  der  nicht  mit 
Vernunft  begabten  Aussenwelt.'  Windscheid,  Pand.  i.  §  40.  'Ein  dem 
menschlichen  Willen  zugangliches,  und  seiner  Herrschaft  unterwerf  bares, 
Stiick  der  sinnlichen  Aussenwelt,  welches  dergestalt  raumlich  begrenzt 
ist  dass  es  von  seiner  Umgebung  dauemd  unterschieden  werden  kann.' 
Kuntze,  Cursus,  i.  §  357.  Cf.  Savigny,  Obligationenrecht,  i.  p.  305, 
Austin,  Jurisprudence,  ii.  p.  20. 

'  Austin,  loc.  cit.,  p.  21. 

HOLLAND  H 


98  ANALYSIS   OF   A   RIGHT. 

CHAP.  VIII.  This  rough  definition  of  a  Thing,  which  indeed  is  little 
more  than  a  somewhat  precise  statement  of  what  is 
popularly  meant  by  the  term,  is,  as  we  have  stated, 
generally  sufficient  for  the  purposes  of  Jurisprudence. 
It  may  however  be  remarked  that  even  lawyers  are 
occasionally  called  upon  to  consider  more  minutely  in 
what  the  identity  of  a  thing  consists  \ 

The  Romans  were  content  to  describe  *res  corporales' 
as  'quae  tangi  possunt,'  giving  as  instances,  a  plot  of 
ground,  a  slave,  a  coat^. 

Of  such  things  there  are  three  kinds',  or  rather  such 
things  occur  under  three  conditions: 

(i)  A  simple  thing  'quod  continetur  uno  spiritu*,  et 
Graece  rjvwfifvov,  id  est  unitum,  vocatur ' ;  e.  g.  a  slave, 
a  beam,  a  stoned 

(2)  A  compound  thing,  'quod  ex  contingentibus,  hoc 
est  pluribus  inter  se  cohaerentibus,  constat,  quod  a-wrj/x- 
fieyov,  id  est .  connexum,  vocatur ' ;  as  a  house,  a  ship,  a 
box ' :  later  described  as  '  universitas  rerum  cohaerentium,' 
'  Sacheinheit.'  The  compound  thing  may  be  different  from 
its  parts,  as  is  a  house,  or  may  be  a  mere  aggregate  of 
them,  as  is  a  bar  of  silver. 

(3)  An  aggregate  of  distinct  things  conceived  of  as 
a  whole,  *quod  ex  distantibus  constat,  ut  corpora  plura 
non  soluta  sed  uni  nomini  subiecta ' ;  as  a  people,  a 
regiment,  a  flock ' ;  described  by  modern  writers  as  a  '  uni- 
versitas facti,'   'universitas  hominis,'   ' Sachgesammtheit V 


*  See  e.  g.  Buckley  v.  Gross,  3  B.  &  S.  566, 

'  lust.  Inst.  ii.  2.  '  Dig.  xli.  3.  30. 

*  Cf.  '  tota  statua  uno  spiritu  continetur,'  Dig.  vi.  23.  5. 

'  The  terms  i)vo>ixivov  and  avvtjmitvov  are  borrowed  from  the  Stoic  philo- 
sophy. 

*  Cf.  Dig.  vi.  I.  23.  5. 

'  Cf.  Dig.  ii.  20.  18.  I.  'Est  enim  gregis  unum  corpus  ex  distantibus 
capitibus.' 

*  It'  is  disputed  whether  a  whole  of  this  sort  is  the  object  of  a  right. 
This  Booking,  Inst.  p.  31,  denies.  Windscheid,  Pand.  i.  §  137,  would 
allow  it  in  the  case  of  a  natural  aggregate,  such  as  a  flock,  but  not  of  an 


CLASSES   OF   THINGS.  99 

Such   a  whole   may  continue   to   subsist    though   all    its  chap.  vm. 
parts  are  changed. 

ii.  Intellectual,  or  artificial,  things, '  bios  gedachte  Dinge,'  Res  incor- 
'  Res  mcorporales,' '  quae  tangi  non  possunt,' '  quae  in  iure  ^^^^  ^^' 
consistunt ' ;  as  a  usufruct,  a  hereditas,  a  dos,  a  peculium, 
an  obligation;  where  the  'ipsum  ius'  is  incorporeal,  though 
it  often  relates  to  corporeal  objects  \  This  class  might 
of  course  include  all  Rights  ^  though  as  a  matter  of  fact 
the  Roman  lawyers  abstain  from  treating  under  it  of 
'  dominium  ^'  German  writers  express  the  idea  by  the 
term  '  Rechtsgesammtheit.'  It  will  be  observed  that  some 
'things'  of  this  class  are  aggregates  of  duties  as  weU  as 
of  rights ;  e.  g.  a  hereditas,  which  imposes  on  the  heir 
liabilities  as  well  as  profit;  and  that  modern  civilisation 
has  added  to  the  class  those  groups  of  rights  known 
as  'copy  right,'  'patent  right,'  and  the  like,  and  collec- 
tively described  as  '  intellectual  property ' ;  of  which  more 
hereafter. 

'Things'  are  further  classified,  in  accordance  with  the  Other  das- 
different  ways  in  which  they  are  subservient  to  persons,  of  things. 
under  various  heads,  of  which  the  following  are  the  more 
important. 


artificial  aggregate,  such  as  'the  tackle  of  a  ship,'  citing  Dig.  vi.  i.  3.  §  i ; 
but  mentions  a  case  recently  decided  in  which '  the  properties  of  a  theatre ' 
were  recognised  as  a  whole,  so  that  a  mortgage  of  them  included  after- 
acquired  properties.    Seuffert,  Archiv,  xv.  §  187. 

'  lust.  Inst.  ii.  2.  Cf . '  Rei  appellatione  et  causae  et  iura  continentur,' 
Dig.  1.  16.  23;  '  Hereditas  etiam  sine  ullo  corpore  iuris  intellectum  habet,' 
Dig.  V.  3.  50;  'Hereditas  iuris  nomen  est,'  Dig.  1.  16.  178. 

'  So  that  a  Right  might  be  the  object  of  a  Right ;  in  other  words,  might 
be  one  of  the  four  terms  into  which,  as  we  have  shown,  a  Right  may  be 
analysed.  This  use  of  language,  though  convenient  by  way  of  a  short 
description  of  certain  groups  of  rights,  such  as  a  copyright,  or  of  masses 
of  mingled  rights  and  duties,  such  as  a  '  hereditas,'  seems  less  necessary 
in  the  case  of  simple  obligations.  This  feeling  finds  expression  in  the 
rule,  formerly  prevalent  in  English  law,  that  'a  chose  in  action  is  not 
assignable.' 

»  Cf.  Baron,  Pand.  §  37;  Wachter,  Pand.  §  59. 

H2 


lOO 


ANALYSIS   OF   A  RIGHT. 


CHAP.  VIII. 

Divisible, 
indivi- 
sible. 


Moveable, 
immove- 
able. 


(i)  Things  divisible  and  indivisible. 

When  a  simple  thing  is  capable  of  physical  division, 
its  parts,  from  the  moment  when  they  are  distributed 
(which  does  not  imply  actual  severance),  are  held  pro 
diviso,  each  thereupon  becoming  a  new  whole.  'Quod 
pro  diviso  nostrum  sit  id  non  partem  sed  totum  esse*;' 
so  each  share  of  an  estate  '  non  est  pars  fundi  sed  fundus  ^.' 
As  a  general  rule,  a  thing  is  juristically  thus  divisible 
which  can  be  divided  without  destroying  its  essence  or 
impairing  its  value  ^.  Some  things,  though  physically 
divisible,  are  juristically  indivisible,  because  by  division 
the  character  of  their  parts  is  entirely  changed,  e.  g.  a 
picture,  an  animal,  a  house.  The  thing  may  however 
also  be  divided  into  merely  ideal  parts  of  a  whole,  which 
is  held  pro  indiviso^  as  in  the  case  of  joint  owners  of 
a  slave,  or  the  several  joint  tenants  of  an  estate,  each 
of  whom  is  seised  in  it  per  my  et  per  tout.  Compound 
things  are  susceptible  of  division  in  this  manner  only*. 
'Corpora  ex  distantibus  corporibus,'  as  a  flock  of  sheep, 
though  only  intellectual  wholes,  have  physical  parts. 
The  parts  of  a  'res  incorporalis,'  such  as  a  bankrupt's 
estate,  which  is  itself  a  merely  intellectual  entity,  are 
intellectual  also. 

(2)  Res  mobiles,  immobiles.  Moveable,  as  furniture  or 
cattle,  and  immoveable,  as  land  or  houses.  No  distinc- 
tion is  more  generally  accepted  or  more  far-reaching  in 
its  consequences.  It  is  perhaps  hardly  necessary  to  remark 
that  this  distinction  does  not  exactly  correspond  to  that 
between  'real'  and  'personal'  property,  which  is  a  result 


'  Dig.  1.  16.  25,  §  I. 

*  Dig.  viii.  4.  6,  §  I. 

'  Dig.  XXX.  i.  26,  §  2.   Cf.  Savigny,  Obligationenrecht,  i.  p.  305. 

*  Opinions  differ  as  to  the  nature  of  partes  pro  indiviso.  E.  g.  Bocking, 
Inst.  p.  30,  holds  that  they  are  parts  of  the  Right.  Windscheid,  Pand.  i. 
§  142,  and  Baron,  Pand.  §  39,  that  they  are  parts,  though  only  intel- 
lectual parts,  of  the  Thing  itself. 


FACTS.  lOI 

of   feudal   ideas,  surviving   only  in   the  law  of  England  chap.  viii. 
and  its  derivatives*. 

(3)  'Res  in  commercio,'  'in  patrimonio  nostro,'  'in  bonis,' In  com- 
and  ' res  extra  commercium,'  ' extra  patrimonium,'  ' nullius  ™ tra "om- 
in  bonis,'  i.  e.  things  which  are,  and  which  are  not,  capable  mercium. 
of    private   ownership.    Of   the   latter,  some   things,  like 

the  air,  are  incapable  of  appropriation ;  others  are  both 
owned,  and  exclusively  used,  by  the  State  and  its  func- 
tionaries, and  are  then  said  to  be  'in  patrimonio  populi'; 
as  are,  for  instance,  palaces  and  ships  of  war.  Others, 
though  owned  by  the  State,  are  at  the  disposal  of  the 
community,  as  are  parks  and  roads.  Others  again  are 
set  apart  for  religious  purposes. 

(4)  Things  principal,  accessory.  Principal, 
,  accessory. 
(5;  Kes  quae  usu  consumuntur,  non  consumuntur.          Consum- 

(6)  Res   fungibiles,   non    fungibiles.    'Fungible    things,' ^<i' <^'" '^*^*' 
'quae  mutua  vice  funguntur,'  are  those  one  specimen  of  Fungible, 
which  is  as  good  as  another,  as  is  the  case  with  half-°?/|    "' 
crowns,  or  pounds  of  rice  of  the  same  quality.    Horses, 
slaves,  and  so  forth,  are  non-fungible  things,  because  they 
differ  individually  in  value  and  cannot  be  exchanged  in- 
differently one  for  another  ^ 

III.  'Facts'  (Thatsachen,  Faits),  which  have  been  in- Facts, 
adequately  defined  as  'transient  causes  of  sensation,'  are 
either  'Events'  or  'Acts.' 

I.  'Events'     (Ereignisse,*  zufallige    Umstande,    Zuf all, Events. 


'  On  the  derivation  of  this  distinction  from  Bracton's  division  of  actions 
into  '  in  rem '  and  '  in  personam '  (in  a  sense  other  than  that  of  Roman 
law),  see  an  article  by  T.  Cyprian  Williams,  4  L.  Q.  R.  394.  Still  more 
arbitrary  was  the  long  obsolete  distinction  between  '  res  mancipi '  and 
'nee  mancipi.'  Sir  H.  Maine  points  out  that  the  Roman  distinction 
between  moveable  and  immoveable  things  was  relatively  modem :  an 
attempt  to  abandon  the  old  historical  classifications,  and  to  classify 
objects  of  enjoyment  according  to  their  actual  nature.  Early  Law  and 
Custom,  ch.  X. 

'  On  the  application  of  this  distinction  in  the  contracts  'locatio- 
conductio'  and  'depositum,'  see  Dig.  xix.  2.  31. 


I02  ANALYSIS   OF   A    RIGHT. 

CHAP.  VIII.  Casus,  fivenements)  may  be  either  movements  of  external 
nature,  such  as  a  landslip,  the  increase  of  a  flock  of  sheep, 
the  death  of  a  relative,  or  an  accidental  fire ;  or  may  be 
acts  of  a  human  bemg  other  than  the  human  being  whose 
rights  or  duties  are  under  consideration. 

Lapse  of  time  and  change  of  place  are  among  the  events 
which  are  most  productive  of  legal  consequences  ^ 

Acts.  2.  'Acts'  (Handlungen,  Actes),  in  the  widest  sense  of 

the  term,  are  movements  of  the  will.  Mere  determinations 
of  the  will  are  'inward  acts.'  Determinations  of  the  will 
which  produce  an  effect  upon  the  world  of  sense  are 
'outward  acts.'  'The  inner  stage  of  an  Act,'  says  a 
recent  writer,  'ends  wjth  the  determination  (Entschluss), 
to  which  it  is  guided  by  a  final  cause  (Zweck).  The 
outer  stage  (die  That)  is  the  realisation  of  the  former  in 
the  external  world  by  the  help  of  natural  laws,  such  as 
gravity  ^'  Jurisprudence  is  concerned  only  with  outward 
acts^  An  'Act'  may  therefore  be  defined,  for  the  pur- 
poses of  the  science,  as  'a  determination  of  will,  producing 
an  effect  in  the  sensible  world  ^'  The  effect  may  be 
negative,  in  which  case  the  Act  is  properly  described  as 
a  'Forbearance.' 

Essentials         The  essential  elements  of  such  an  Act  are  three,  viz. 

of  an  act. 

an  exertion  of  the  will,  an  accompanymg  state  of  con- 
sciousness, a  manifestation  of  the  will. 

'  Savigny,  System,  iii.  p.  297;  Windscheid,  Pand.  i.  p.  291.  Stat.  43 
and  44  Vict.  c.  9,  was  passed  'to  remove  doubts  as  to  the  meaning  of 
expressions  relative  to  Time  in  Acts  of  Parliament  and  other  legal  in- 
struments.' 

*  Ihering,  Der  Zweck  im  Recht,  i.  p.  32. 

'  '  Nee  consilium  habuisse  noceat,  nisi  et  factum  secutum  fuerit.' 
Dig.  1.  16.  53. 

*  The  '  Entschluss  des  Willens '  plus  the  '  Aeusserung  des  Willens '  is 
'That,'  which  may  be  of  omission  or  of  commission.  'Die  That  ist 
iiberhaupt  die  hervorgebrachte  Veranderung  und  Bestimmung  des 
Daseyns.  Zur  Handlung  aber  gehort  nur  dasjenige  was  von  der  That 
im  Entschlusse  liegt,  oder  im  Bewusstsein  war,  was  somit  der  Wille  als 
das  seinige  anerkennt.'    Hegel,  Propadeutik,  Einl.  §  9. 


CONSCIOUSNESS.  IO3 

1.  Any  discussion  on  the  nature  of  the  faculty  of  will  chap.  vin. 
and  the  mode  of  its  exercise  would  here  be  out  of  place,  ^i^^- 

We  may  accept  as  sufficient  for  our  purpose  the  definition 
of  an  act  of  will  as,  'the  psychical  cause  by  which  the 
motor  nerves  are  immediately  stimulated V  or  as,  'that 
inward  state  which,  as  experience  informs  us,  is  always 
succeeded  by  motion  while  the  body  is  in  its  normal 
condition,'  e.  g.  is  not  paralysed  ^. 

if  a  movement  is  caused  by  physical  compulsion,  'vis Vis. 
absoluta,'  as  when  the  hand  of  a  person  is  forcibly  guided 
in  making  a  signature,  there  is  no  act,  since  will  is  absent. 

But  the  will  itself,  being  amenable  to  motives,  may  beMetus. 
coerced  by  threats,  'metus,'  'vis  compulsiva,'  'duress  per 
minas.'  Here  there  is  indeed  an  act,  but  one  which 
produces  none  or  few  of  the  legal  consequences  which  it 
would  have  produced  had  it  been  the  result  of  free 
volition.  *  If,'  says  Paulus,  '  I  have  accepted  an  inheritance 
under  the  influence  of  fear,  I  am  of  opinion  that  I  become 
heir,  because,  although  if  I  had  been  free  I  should  have 
refused,  yet  I  did  consent,  though  under  compulsion 
(coactus  volui).  But  the  praetor  will  give  me  relief  ^' 
So  in  English  law,  a  contract  or  will  obtained  by  '  undue 
influence'  will  be  set  aside,  and  a  wife  who  commits 
certain  crimes  in  the  presence  of  her  husband,  will  be 
presumed  to  have  acted  under  his  coercion,  and  will 
therefore  be  excused  from  punishment. 

A  merely  juristic  person  is  obviously  incapable  of 
willing,  unless  by  a  representative,  or  by  a  majority  of 
its  members.  , 

2,  The    moral    phenomena  of    an  exertion    of  will  are  Conscious- 
necessarily  accompanied  by  intellectual  phenomena.    The 
only  immediate  result  of  a  voUtion  is  a  muscular  move- 

'  Zitelniann,  Irrthum,  p.  36. 

*  Sir  J.  F.  Stephen,  General  View  of  the  Criminal  Law,  p.  76. 

•  Dig.  iv.  3.  21.   Cf.  German  Civil  Code,  123. 


ness. 


I04 


ANALYSIS    OF   A   RIGHT. 


CHAP.  VIII.  meiit  on  the  part  of  the  person  willing,  but  certain  further 
results  are  also  always  present  to  his  mind,  as  likely  to 
follow  the  muscular  movement  which  alone  he  can  directly 
control.  Those  among  them  to  the  attainment  of  which 
the  act  is  directed  are  said  to  be  '  intended  \'  and  wrong- 
Intention,      ful  acts  done  with  intention,  are  in  English  law  often 

said  to  be  done  maliciously^.' 
D^rees  of.  Such  a  state  of  consciousness  may  be  possessed  in  very 
different  degrees  by  different  classes  of  persons,  and  at 
different  times.  It  is  wholly  absent  in  a  '  lunatic,'  '  furiosi 
nulla  voluntas  est  ^ ' ;  in  an  infant  under  years  of  dis- 
cretion, 'sensus  nuUus  infantis  accipiendi  possessionem  ^' 
It  is  imperfectly  possessed  by  'impuberes,'  although  'in- 
fantia  maiores';  by  women,  according  to  older  systems 
of  law;  by  decreed  prodigals,  and  by  minors.  In  some 
of  these  cases  the  defect  of  an  understanding  will  is 
supplied  by  a  provision  of  law,  such  as  'tutela.' 
Ignorance  Intelligence    may    also    be    temporarily    suspended    by 

drunkenness  or  sleep;    and  it  may  be  misled  by  'error,' 
i.  e.  ignorance  or  mistake  ^  A  distinction  is  usually  drawn 
of  fact,  between  ignorance  of  law  and  of  fact.    An  act  may  be 

excusable  or  even  rescissible  when  done  in  ignorance  of 
a  state  of  facts,  while  its  consequences  cannot  be  avoided 
by  showing  that  it  was  done  in  ignorance  of  the  law. 
*Regula  est,  iuris  ignorantiam  cuique  nocere®':    so,  says 


*  On  '  intention,'  see  James  Mill,  Analysis,  ii.  p.  399. 

^  '  Actual  malice '  is  proved  by  evidence  throwing  light  upon  the  state 
of  mind  with  which  an  act  is  done,  but  malice  is  often  presumed  from 
the  character  of  the  act  complained  of,  e.  g.  from  the  untruth  of  a 
defamatory  statement,  or  from  a  prosecution  without  reasonable  cause. 
In  such  cases  the  state  of  mind  of  the  wrong-doer  is  immaterial  to  his 
guilt. 

*  Dig.  xliv.  7.  i;  1.  17.  5  et  4°.  *  Dig-  xli.  2.  32. 

^  'Der  Irrthum  ist  unrichtige  oder  mangelnde  Vorstellung.'  Zitel- 
mann,  p.  327. 

*  Dig.  xxii.  6.  9.  Lord  King  C,  in  Lansdowne  v.  Lansdowne,  Moseley, 
364,  is  reported  to  have  said  that  the  maxim  means  that  ignorance 
cannot  be  pleaded  in  excuse  of  crimes,  but  that  it  does  not  hold  Ln  Civil 
cases.   But  this  is  certainly  not  law. 


IGNORANCE.  105 

Paulus,  *  If  one  knows  that  he  is  heir  under  a  will,  but  chap.  vin. 
does  not  know  that  the  praetor  will  give  "  bonorum  ^^  *^^- 
possessio"  to  an  heir,  time  runs  against  him,  because 
he  is  mistaken  in  his  law\'  And  so  it  was  held  by- 
Lord  Ellenborough,  that  a  captain  of  a  king's  ship  who 
had  paid  over  to  his  admiral,  according  to  a  usage  in 
the  navy,  one-third  of  the  freight  received  by  him  for 
bringing  home  treasure  upon  the  public  service,  could 
not  recover  the  payment  upon  discovering  that  there 
was  no  law  compelling  him  to  make  it^  Persons  have 
even  been  convicted  of  what  became  an  offence  only 
under  an  Act  of  Parliament  passed  subsequently  to  the 
fact;  in  accordance  with  the  rule,  since  altered,  that  the 
operation  of  an  Act  of  Parliament,  in  the  absence  of 
express  provision,  relates  to  the  first  day  of  the  session 
in  which  it  was  passed  ^  The  very  artificial  reason 
alleged  in  the  Digest  for  the  inexcusabiUty  of  ignorance 
of  law  is  that  'law  both  can  and  should  be  limited  in 
extent^';  and  so  Blackstone  says,  that  'every  person  of 
discretion,  not  only  may,  but  is  bound  and  presumed  to 
know  the  law.'  The  true  reason  is  no  doubt,  as  Austin 
points  out,  that  'if  ignorance  of  law  were  admitted  as 
a  ground  of  exemption,  the  courts  would  be  involved  in 
questions  which  it  were  scarcely  possible  to  solve,  and 
which  would  render  the  administration  of  justice  next 
to  impracticable.'  It  would  be  necessary  for  the  Court 
to  ascertain,  first,  whether  the  party  was  ignorant  of 
the  law  at  the  time  of  the  alleged  wrong,  and  if  so, 
secondly,  was  his  ignorance  of  the  law  inevitable,  or  had 
he  been  previously  placed  in  such  a  position  that  he 
might  have  known  the  law,  if  he  had  duly  tried.    Both 

*  Dig.  xxii.  6.  I.  2  Brisbane  v.  Dacres,  5  Taunt.  143. 

'  Attorney-General  v.  Panter,  6  Bro.  P.  C.  489;  Latless  v.  Holmes, 
4  T.  R.  660;  R.  V.  Thurston,  i  Lev.  91.  Cf.  R.  v.  Bailey,  Russ.  and  Ry. 
Cr.  Ca.  I ;  and,  as  to  By-laws,  Motteram  v.  E.  C!ounties  Ry.  29  L.  J., 
M.  C.  57. 

*  Dig.  xxii.  6.  z. 


io6 


ANALYSIS   OF   A   RIGHT. 


CHAP.  vui.  of  these  questions  are  next  to  insoluble.  'Whether  the 
party  were  really  ignorant  of  the  law  and  was  so  ignorant 
of  the  law  that  he  had  no  surmise  of  its  provisions, 
could  scarcely  be  determined  by  any  evidence  accessible 
to  others,  and  for  the  purpose  of  discovering  the  cause 
of  his  ignorance  (its  reality  being  ascertained)  it  were 
incumbent  upon  the  tribunal  to  unravel  his  previous 
history,  and  to  search  his  whole  life  for  the  elements  of 
a  just  solution  \'  The  stringency  of  the  rule  was  in  Roman 
law  modified  by  exceptions  in  favour  of  certam  classes 
of  persons  'quibus  permissum  est  ius  ignorare.'  Such 
were  women,  soldiers,  and  persons  under  the  age  of  twenty- 
five,  unless  they  had  good  legal  advice  within  reach  ^. 
Chance.  Results    may    also    follow    from    acts    without    being 

intended.  Such  results,  if  the  person  acting  had  no 
means  of  foreseeing  them,  are  ascribed  to  'chance,'  and 
no  responsibility  attaches  to  him  in  respect  of  them^ 
If  they  are  such  as  he  might  have  foreseen  had  he  taken 
more  pains  to  inform  his  mind  before  coming  to  a  decision, 
they  are  attributed  to  his  '  negligence.' 


'  Jurisprudence,  ii.  p.  171.  So  Lord  Ellenborough:  'There  is  no 
saying  to  what  extent  the  excuse  of  ignorance  might  not  be  carried.' 
Bilbie  v.  Lumley,  2  East.  472.  As  against  Austin's  view,  Mr.  Justice 
Holmes  maintains  that  '  every  one  must  feel  that  ignorance  of  the  law 
could  never  be  admitted  as  an  excuse,  even  if  the  fact  could  be  proved  by 
sight  and  hearing  in  every  case,'  and  thinks  the  true  explanation  of  the 
rule  to  be  the  same  as  that  which  accounts  for  the  law's  indifference  to 
a  man's  particular  temperament  and  faculties.  The  Common  Law,  p.  48. 
For  an  argument  by  Mr.  Melville  M.  Bigelow  in  favour  of  extending  the 
(in  England)  very  rudimentary  doctrine  of  equitable  relief  for  mistake 
of  law,  see  i  Law  Quarterly  Review,  p.  298. 

*  Dig.  xxii.  6.  9. 

'  '  Impunitus  est  qui  sine  culpa  et  dolo  malo  casu  quodam  damnum 
committit.'  Gains,  iii.  211.  Sir  F.  Pollock,  Torts,  ed.  7,  pp.  132-146,  shows 
that  while  the  earlier  English  decisions  incline  to  admit  some  liability  for 
the  accidental  consequences  of  an  act,  later  cases,  e.  g.  Stanley  v.  Powell 
[1891],  I  Q.  B.  86,  incline  towards  the  view  prevalent  in  the  United 
States  which  is  in  full  accordance  with  that  of  the  Roman  lawyers. 
So  it  was  held  by  the  Supreme  Court  that  'no  one  is  responsible  for 
injuries  resulting  from  unavoidable  accident,  whilst  engaged  in  a  lawful 
business.'    The  Nitro-glycerine  Case,  15  Wallace,  524. 


NEGLIGENCE.  10/ 

This  term,  like  its  Latin  equivalent  '  culpa,'  has  been   chap.  viii. 

used    to    mdicate    a    state    of    mind,    the    description    of^^"" 

gence 

which  has  taxed  the  ingenuity  of  many  generations 
of  commentators.  It  covers  all  those  shades  of  in- 
advertence, resulting  in  injury  to  others,  which  range 
between  deliberate  intention  C  dolus '),  on  the  one  hand  \ 
and  total  absence  of  responsible  consciousness  on  the 
other  I 

The  state  of  mind  of  the  doer  of  an  act  is  often  the  is  measur- 
subject    of    legal    enquiry  with    a    view   to    ascertaining  objective 
whether  it  exhibits  the  phenomena  of  '  intention  ^'     From  standard 
the  nature  of   the   case,  a   similar   enquiry  can  hardly  be 
undertaken   with   a  view  to    detecting  the   psychological 
phenomena  of  'negligence.'    Lawyers  have  therefore  long 
been  content,  in  enquiring  into  the  alleged  negligence  of 
a  given  individual,  to  confine  themselves  to  ascertaining 
whether  or  no  his  acts  conform  to  an  external  standard 
of  carefulness.    Two   such   standards  were   employed   by 


*  'Culpa'  in  the  widest  sense  included  'dolus';  and  a  high  degree  of 
'culpa'  is  said  to  resemble,  and  even  to  be,  'dolus.'  Cf.  Dig.  xi.  6.  i.  i; 
xvii.  I.  29;   xlvii.  4.  i;   1.  i6.  226. 

'  According  to  Austin, '  negligence'  is  the  inadvertent  omission  to  act 
as  one  ought,  '  heedlessness'  is  the  inadvertent  acting  as  one  ought  not, 
while  '  rashness,' '  temerity,'  or  '  foolhardiness '  is  the  acting  as  one  ought 
not,  adverting  to  the  consequences  which  may  follow  from  the  act,  but 
assuming,  upon  insufficient  reflection,  that  those  consequences  will  not 
follow  in  the  particular  instance.  Thus,  I  take  up  a  rifle  and  shoot  AB. 
This  act  may  be  accompanied  by  very  different  mental  conditions.  I 
may  see  AB,  point  the  rifle  at  him  and  expect  him  to  fall  dead  if  I  fire. 
Here  I  ' intend'  his  death.  Or  I  may  be  firing  at  a  target,  and  omit  to 
make  the  signal  which  would  have  prevented  AB  from  passing  behind 
it  and  receiving  my  bullet.  Here  the  death  is  due  to  my  'negligence.' 
Or  I  may  fire  without  thinking  of  the  likelihood  of  any  one  passing  that 
way.  The  death  is  then  due  to  my  'heedlessness.'  Or,  it  may  occur 
to  me  that  some  one  may  pass  by,  but  I  may  think  the  chance  so  slight 
that  it  may  be  disregarded.  The  death  of  AB  is  here  the  result  of  my 
'  rashness.'  These  distinctions  are  interesting,  but  do  not  appear  to  be 
adopted  in  any  system  of  positive  law.  See  Austin's  Lectures,  ii.  p.  103; 
Bentham,  Pr.  Morals  and  Legisl.  c.  ix. 

'  E.  g.  to  establish  the  cancellation  of  a  will,  actual  malice  in  libel,  or 
the  'animus  furandi.'    But  see  Holmes,  Common  Law,  p.  138. 


io8 


ANALYSIS   OF   A   RIGHT. 


which  is 
usually  an 
ideal  one. 


CHAP.  VIII.   the  Roman  lawyers  to  measure  that '  diUgentia '  the  failure 
to  attain  which  they  called  *  culpa.' 

In  some  cases  they  measured  due  diligence  by  the 
amount  of  care  which  the  person  whose  conduct  was 
called  in  question  was  wont  to  show  in  the  management 
of  his  own  affairs,  '  quantam  in  suis  rebus  adhibere  solet.' 
Conduct  falling  short  of  this  is  described  by  modern 
civilians  as  'culpa  in  concreto.'  But  a  far  more  im- 
portant measure  of  'diligentia'  is  afforded  by  the  care 
which  would  be  exercised  under  the  circumstances  by 
the  average  good  citizen,  conduct  falling  short  of  which 
is  the  so-called  'culpa  in  abstracto,'  This  abstract,  or 
ideal,  objective  test  is  that  which  is  applied  in  modern 
codes,  and  is  stated  with  growing  clearness  in  the  decisions 
of  English  and  American  Courts.  So  it  was  laid  down 
by  Tindal  C.  J.,  as  early  as  1837,  that  'the  care  taken  by 
a  prudent  man  has  always  been  the  rule  laid  down: 
and  as  to  the  supposed  difficulty  of  applying  it,  a  jury 
has  always  been  able  to  say  whether,  taking  that  rule 
as  their  guide,  there  has  been  negligence  on  the  occasion 
in  question.  Instead  of  saying  that  the  liability  for 
neghgence  should  be  co-extensive  with  the  judgment  of 
each  individual,  which  would  be  as  variable  as  the  length 
of  the  foot  of  each  individual,  we  ought  rather  to  adhere 
to  the  rule  which  requires  in  aU  cases  a  regard  to  caution 
such  as  a  man  of  ordinary  prudence  would  observe  \' 
Actionable  negligence  has  been  well  described  as  'the 
omission  to  do  something  which  a  reasonable  man  would 


*  Vaughan  v.  Menlove,  3  Bingham,  N.  C,  468.  In  this  case  the 
question  of  the  test  of  negligence  was  distinctly  raised.  The  argument, 
unsuccessfully  urged  in  favour  of  a  new  trial,  having  been  that  the  jury 
should  have  been  asked  '  not  whether  the  defendant  had  been  guilty  of 
gross  negligence  with  reference  to  the  standard  of  ordinary  prudence, 
a  standard  too  uncertain  to  afford  any  criterion,  but  whether  he  had 
acted  bona  fide  to  the  best  of  his  judgment;  if  he  had,  he  ought  not  to 
be  responsible  for  the  misfortune  of  not  possessing  the  highest  order 
of  intelligence.' 


NEGLIGENCE.  109 

do,  or  the  doing  of  something  which  a  reasonable  man  chap.  vin. 
would  not  do\'  In  a  recent  case  in  the  Supreme  Court 
of  Massachusetts,  Holmes  J.  explained  that  '  so  far  as  civil 
liability  is  concerned  at  least,  it  is  very  clear  that  what 
we  have  called  the  external  standard  would  be  applied, 
and  that  if  a  man's  conduct  is  such  as  would  be  reckless 
in  a  man  of  ordinary  prudence,  it  is  reckless  in  him. 
Unless  he  can  bring  himself  within  some  broadly-defined 
exception  to  general  rules,  the  law  deUberately  leaves  his 
personal  equation  or  idiosyncrasies  out  of  account,  and 
peremptorily  assumes  that  he  has  as  much  capacity  to 
judge  and  to  foresee  consequences,  as  a  man  of  ordinary 
prudence  would  have  in  the  same  situation  ^. 

The  care  and  skill  which  people  are  required  to  exhibit  The  de- 
in  their  conduct  C  diligentia ')  has  two  degrees ' :  that  which  ^t^.^ 
is  due    from   persons  generally ;   and  that  which  is   due  s^^nce. 
from  persons  occupying  positions  which  mark  them  out  as 
being  exceptionally  reliable  with  reference  to  the  matter 
in  question  ('  exacta  diligentia  ')•    A  person  of  the  former 
class  is  liable  only  for  '  culpa  lata,'  i.  e.  '  nimia  negligentia, 
id  est,  non  intelligere  quod  omnes  intelligunt  \'  for  '  gross 
negligence^.'    A  person  of  the  latter  class,  of  whom  the 


*  Per  Alderson  B.  in  Bly th  v.  Birmingham  Waterworks  Co, ,  1 1  Ex .  78 1 . 
Cf.  Grill  V.  Gen.  Iron  Screw  Collier  Co.,  L.  R.  i  C.  P.  600;  Brown  v. 
Kendall,  6  Cush.  292. 

^  Commonwealth  v.  Pierce,  138  Mass.  165,  S.  C.  52  Am.  Rep.  264. 
Knox  V.  Mackinnon,  13  A.  C.  753. 

'  The  view  of  the  degrees  of  negligence  given  in  the  text  is  in  the 
main  that  of  Hasse,  whose  work,  Die  Culpa  des  Romischen  Rechts,  first 
published  in  181 5,  is  the  foundation  of  the  modem  literature  of  the 
subject.  An  admirable  resume  of  Hasse's  theories,  with  ample  illustra- 
tion from  English  and  American  decisions,  will  be  found  in  Dr.  Francis 
Wharton's  Treatise  on  the  Law  of  Negligence,  of  which  much  use  has 
been  made  by  the  present  writer. 

*  Dig.  1.  16.  213,  223;   of.  ix.  2.  31. 

*  Objections  have  been  made  of  late  years  to  the  employment  of  this 
term.  'Gross'  has  been  said  to  be  a  'word  of  description  and  not  of 
definition,'  Willes  J.  in  Grill  v.  Gen.  Iron  Screw  Collier  Co.,  L.  R.  i  C.  P. 
600.  But  the  Supreme  Court  of  the  U.  S.,  while  admitting  'that  such 
expressions  as  "  gross  "  and  "ordinary  "  negligence  are  indicative  rather  of 


HO  ANALYSIS   OF   A   RIGHT. 

CHAP.  VIII.  Romans  spoke  as  '  homo  diligens  et  studiosus  paterfami- 
lias \'  but  who  has  been  shortly  described  by  some  modern 
writers  as  a  '  specialist  ^^  is  liable  for  even  a  slight  deviation 
from  the  high  standard  to  which  he  holds  himself  out  as 
attaining,  i.  e.  for  '  culpa  levis,'  or  '  ordinary  negligence  ^.' 
Although,  as  a  matter  of  fact,  he  may  have  done  his  work 
as  well  as  he  could,  yet  he  is  liable  for  his  failure  to  do 
it  better,  '  spondet  peritiam  artis.'  In  his  case, '  imperitia 
culpae  adnumeratur  *.'  His  assumption  of  duties  for  which 
he  is  unquahfied  is  in  itself  negligence. 

The  test  of  due  diligence  (or  conversely  of  undue 
negligence)  is  in  both  cases,  as  has  been  already  ex- 
plained, an  objective  one.  The  ordinary  person  must 
exhibit  what,  in  the  opinion  of  the  judge  or  jury,  is  the 
average  care  of  a  person  of  that  class,  and  a  specialist 
must  similarly  attain  to  the  standard  to  which  speciahsts 
are  expected  to  conform  ^ 


the  degree  of  care  and  diligence  which  is  due  from  a  party,  and  which 
he  fails  to  perform,  than  of  the  amount  of  inattention,  carelessness,  or 
stupidity,  which  he  exhibits,'  went  on  to  say  that  'if  the  modem 
authorities  mean  more  than  this,  and  seek  to  abolish  the  distinctions 
of  degrees  of  care,  skill,  and  diligence  required  in  the  performance  of 
various  duties,  and  the  fulfilment  of  various  contracts,  we  think  they 
go  too  far.'  New  York  Cent.  R.  Co.  v.  Lockwood,  17  Wallace,  357,  cited 
by  Wharton,  u,  s.  §  49. 

1  E.  g.  Dig.  xxii.  3.  25;  xlv.  i.  137. 

*  Wharton,  §  32.   Cf.  Hasse,  §  24,  on  the  'diligentia  diligentis.' 

"  Hasse  is  at  much  pains  to  disprove  the  existence  of  a  third  grade  of 
culpa,  viz.  '  levissima.'  In  §  25  he  ridicules  the  attempt  of  Salicetus  to 
distinguish  further  a  '  culpa  levior.'  There  is  however  no  doubt  that  the 
three  grades  of  negligence,  'gross,'  'ordinary,'  and  'slight,'  favoured  by 
Lord  Holt  and  Sir  W.  Jones,  are  usually  recognised  in  the  English  and 
American  Courts.  Cf.  Wharton,  §  59.  Three  grades  are  recognised  in 
the  Prussian  Code,  but  two  only  in  the,  more  modem,  Codes  of  France, 
Italy,  and  Austria.  The  German  Code,  823,  does  not  distinguish  grades 
of  '  Fahrlassigkeit.' 

*  lust.  Inst.  iv.  3.  7-  Cf.  Dig.  ix.  2.  8.  §  i;  1.  17.  132.  On  the  skill 
and  care  expected  from  physicians  or  attorneys,  see  Hart  v.  Frame,  6  CI. 
and  F.  193;  Lamphier  v.  Phipos,  8  C.  and  P.  475- 

*  On  the  ideal  character  of  the  standard,  see  Holmes,  The  Common 
Law,  p.  108.  Compare  the  maxim  that '  every  man  is  supposed  to  intend 
the  necessary  and  reasonable  consequences  of  his  own  acts.' 


ACTS.  ,  III 

Negligence  may  consist  either  'in  faciendo'  or  'in   non    chap.  viii. 
faciendo,'  being  indeed  either  non-performance,   or  inad- 
equate performance  of  a  legal  duty. 

An  attempt  has  recently  been  made  to  generalise  the 
law  of  actionable  negligence,  which,  though  not  accepted, 
will  doubtless  influence  judicial  speculation  upon  the 
subject.  According  to  Brett  M.  R.,  '  When  one  person  is 
by  circumstances  placed  in  such  a  position  with  regard  to 
another  that  every  one  of  ordinary  sense  who  did  think 
would  at  once  recognise  that;  if  he  did  not  use  ordinary 
care  and  skill  in  his  own  conduct  with  regard  to  those 
circumstances,  he  would  cause  danger  of  injury  to  the 
person  or  property  of  the  other,  a  duty  arises  to  use 
ordinary  care  and  skill  to  avoid  such  danger  \' 

3.  The  will  must  be  manifested,  or  expressed;  and  inExpres- 
some  cases  may  be  expressed  by  some  one  other  than  the 
party  willing,  i.e.  by  an  agent,  whence  the  maxims  'qui Agency, 
facit  per  alium  facit  per  se,'  'respondeat  superior.' 

For  an  act,  in  the  sense  of  a  manifestation  of  conscious  Imputa- 
volition,  a  man  is  said  to  be  '  responsible.'  The  attributing 
of  responsibility  is  'imputation,'  i.e.  'the  judgment  by 
which  any  one  is  regarded  as  originator  (causa  libera) 
of  an  act,  which  then  is  called  "  deed "  (factum)  and  is 
regulated  by  laws^.' 

Acts  are  divided  by  Jurisprudence  into  those  which  are  Classifica- 
' lawful'  and  those  which  are  '  unlawful.'     The  juristic j^^^^^ 
result  of  the  unlawful  acts  is  never  that  aimed  at  by  the 
doer.     In  the  case  of  some  lawful  acts,  their  operation  is 
independent  of  the  intention  of  the  doer;  in  the  case  of 
others,  his  intention  is  directed  to  the  juristic  result. 


'  Heaven  v.  Pender,  L.  R.  11  Q.  B.  Div.  506,  per  Brett  M.  R.,  diss. 
Cotton  and  Bowen  L.  JJ. 

^  Kant,  Rechtslehre,  Werke,  vii.  p.  24. 


act 


112  ,  ANALYSIS   OF   A   RIGHT. 

CHAP.  VIII.       In  the  last-mentioned  case,  the  act  is  technically  described 
Juristic         g^g  'negotium   civile,'  'actus    legitimus,'    'acte    juridique,' 
'  Rechtsgeschaft ' ;  the  nearest  English  equivalent  for  which 
terms  is  probably  '  Juristic  Act  \'     A  recent  writer  has 
used  for  this  purpose  the  phrase  '  act  in  the  law  ^.' 

It  has  been  defined,  by  a  high  authority,  as  '  an  act  the 
intention  of  which  is  directed  to  the  production  of  a  legal 
result  ^'  But  this  definition,  as  it  stands,  is  wider  than 
the  received  use  of  the  term  would  warrant.  The  judg- 
ment of  a  Court,  or  an  order  of  the  King  in  Council 
might  fairly  be  so  described.  A  better  definition  is  'a 
manifestation  of  the  will  of  a  private  individual  directed 
to  the  origin,  termination,  or  alteration  of  rights*.'  A 
'  Juristic  Act '  has  also  been  well  described  as  '  the  form  in 
which  the  Subjective  WiU  develops  its  activity  in  creating 
rights,  within  the  limits  assigned  to  it  by  the  law.'  The 
same  writer  continues :  '  only  in  so  far  as  it  keeps  within 
these  limits  does  it  really  operate ;  beyond  them  its  act  is 


*  It  is  not  to  be  wondered  at  that  no  vernacular  equivalent  is  available 
for  the  expression  of  an  idea  which,  indispensable  as  it  is,  has  hardly 
yet  been  naturalised  in  this  country.  On  '  dispositiones  iure  efficaces,' 
see  Leibnitz,  Praef.  ad  Cod.  lur.  Gentium,  p.  i6. 

'  Sir  F.  Pollock,  Contract,  c.  i.  This  term  would  be  convenient  enough, 
could  it  be  disentangled  from  its  conveyancing  associations,  and  were  it 
not  that  ' act  in  law'  has  a  special  use  as  opposed  to  '  act  of  the  party.' 
Hale,  Analysis  of  the  Law,  Sect,  xxvii.  Mr.  Jenks,  A  Digest,  &c.,  1905, 
uses  '  legal  act.' 

'  '  Handlung,  deren  Absicht  auf  eine  rechtliche  Wirkung  gerichtet  ist.' 
Puchta,  Inst.  ii.  p.  342.  'Erlaubte  Willensausserung,  durch  welche  ein 
Rechtsverhaltniss,  d.h.  eine  gewisse  zufolge  der  Rechtsbestimmung  gel- 
tende  Beziehung  der  Willen  der  Rechtssubjecte,  begriindet,  geandert, 
oder  beendet  wird.'    Bocking,  Inst.  p.  44. 

*  '  Die  auf  die  Entstehung,  den  Untergang,  oder  die  Veranderung  von 
Rechten  gcrichtete  Privatwillenserklarung.'  Windscheid,  Pandekten,  i. 
p.  174.  '  Erlaubte  Willenserklarung  einer  Partei,  welche  unmittelbar  auf 
eine  rechtliche  Wirkung  gerichtet  ist.'  Baron,  Pand.  i.  p.  81.  'Eine 
Handlung,  oder  ein  Complex  von  Handlungen,  welche,  oder  welcher, 
nach  den  rechtlichen  Auslegungsgrundsatzen  betrachtet,  die  Absicht 
ausdriickt,  einen  vom  objectiven  Rechte  zum  Schutze  der  Wirksamkeit 
solcher  Handlungen  verheissenen  Erfolg  herbeizufuhren.'  Leonhard, 
Der  Irrthum  bei  nichtigen  Vertragen,  i.  p.  250. 


JURISTIC   ACTS.  113 

either  barren  of  result,  is  an  empty  nullity,  or  its  operation   chap.  vm. 
is  turned  negatively  against  the  will,  as  an  obligation  to 
undo  what   has   been   done,  by  suffering  punishment   or 
making  reparation  \' 

Juristic  Acts  (Rechtsgeschafte)  must,  of  course,  exhibit.  Requisites 
in  common  with  all  Acts  (Handlungen),  an  exertion  of 
Will,  accompanied  by  consciousness,  and  expressed^;  and 
any  circumstances  which  prevent  the  free  and  intelligent 
exertion  of  the  will  may  either  prevent  the  occurrence  of 
the  Juristic  Act,  or  may  modify  the  consequences  which 
result  from  it.  What  might  appear  to  be  a  Juristic  Act 
is  thus  '  null,'  or  '  void,'  i.  e.  has,  as  such,  no  existence,  if 
due  to  such  actual  violence  as  excludes  an  exertion  of 
will,  or  if  accompanied  by  states  of  consciousness,  such  as 
lunacy,  drunkenness,  and  certain  kinds  of  mistake,  which 
are  incompatible  with  an  intelUgent  exertion  of  will '.  So 
also  a  Juristic  Act,  which  does  come  into  existence,  is 
'  voidable,'  i.  e.  is  liable  to  be  attacked,  and  prevented  from 
producing  its  ordinary  results,  if  attended  at  its  inception 
by 'duress  per  minas'  (metus),  by  fraud  (dolus)  *,  and,  in 
some  exceptional  cases,  by  mistaken  motives. 

Of  the  circumstances  which    may  thus  affect  the  ex- Mistake, 
istence,  or   the   operation,  of   a  Juristic   Act,  that  which 
has  given  rise  to  most  discussion  is  'mistake,'  or  'error.' 


'  Ihering,  Geist  des  R.  R.  iii.  p.  132. 

'  See  R.  Saleilles,  De  la  d^laration  de  volenti.  Contribution  a  I'^tude 
de  I'Acte  Juridique  dans  le  Code  Civil  Allemand,  1901. 

^  In  Roman  Law  a  similar  effect  might  be  produced  by  anger:  '  Quid- 
quid  in  calore  iracundiae  vel  fit  vel  dicitur  non  prius  ratum  est  quam  si 
perseverantia  apparuit  iudicium  animi  fuisse.'    Dig.  xxiv.  2.  3. 

*  Dig.  iv.  I  (De  in  integrum  restitutionibus) :  'Sub  hoc  titulo  pluri- 
fariam  praetor  hominibus  vel  lapsis  vel  circumscriptis  subvenit;  sive 
metu,  sive  caUiditate,  sive  aetate,  sive  absentia,  inciderunt  in  captionem, 
sive  per  status  mutationem,  aut  iustum  errorem.'  Cf.  Dig.  iv.  2  (Quod 
metus  causa  gestum  erit);  iv.  3  (De  dolo  malo);  xHv.  4  (De  doH  mali 
et  metus  exceptione);  Story,  Equity  Jur.  §§  184,  238.  As  to  the  effect 
of  fraud  upon  wills,  see  Melhuish  v.  Milton,  3  Ch.  D.  33;  upon  a  judgment, 
ex  parte  Banner,  17  Ch.  D.  480.  As  to  the  effect  of  duress  and  fraud 
on  contracts,  see  infra,  Chapter  xii. 

HOLLAND  I 


114 


ANALYSIS    OF   A   RIGHT. 


CHAP.  VIII. 


The  corre- 
spondence 
of  will  and 
expres- 
sion. 


The  language  of  the  Roman  lawyers  upon  this  subject  *  is 
by  no  means  clear,  and  has  also  been  much  misunderstood. 
It  is  obvious  that  such  a  proposition  as  'nulla  voluntas 
errantis  est^'  if  taken  literally,  would  sweep  away  a 
number  of  transactions  which  every  one  admits  to  be  per- 
fectly valid,  and  would,  as  has  been  pointed  out,  render 
superfluous  the  whole  doctrine  of  fraud  ^  Savigny  did  good 
service  in  critically  examming  the  passages  in  the  Corpus 
luris  which  bear  upon  the  poiiit,  and  in  carefully  dis- 
tinguishing between  the  error,  whether  'in  negotio,'  'in 
persona,'  or  'in  corpore^'  which  prevents  a  Juristic  Act 
from  coming  into  existence,  and  the  error  in  motive,  which 
may  prevent  such  an  act  from  producing  its  usual  effects  ^ 
Error  of  the  former  kind  he  calls  '  spurious '  or  '  negative,' 
as  being  merely  the  accompaniment  of  that  absence  of 
correspondence  between  the  will  and  its  expression  which, 
as  we  shall  see,  is  in  his  opinion  fatal  to  the  existence  of 
a  Juristic  Act.  Error  of  the  latter  kind  he  describes  as 
'genuine,'  or  'positive,'  because,  though,  as  a  rule,  it 
produces  no  effect  upon  such  an  act  ('falsa  causa  non 
nocet ')  \  yet  in  some  exceptional  cases,  e.  g.  in  testa- 
mentary matters ',  and  in  '  condictio  indebiti,'  it  is  in 
itself  ground  for  an  interference  with  the  operation  of 
the  act. 

It  was  laid  down  by  Savigny  that,  in  order  to  the 
production  of  a  Juristic  Act,  the  will  and  its  expressit)n 
must  be  in  correspondence  ^  This  view  is  in  accordance 
with  the  prima  facie  interpretation  of  most  of  the  relevant 


*  See  especially,  Dig.  xxii.  6;  Cod.  i.  i8. 

'  Dig.  xxix.  3.  20.  '  Savigny,  System,  iii.  p.  342. 

*  Cf.  Dig.  xviii.  i.  9.  *  System,  iii.  pp.  263,  441. 

*  Cf.  Dig.  xii.  6.  65.  2:  'Id  quoque  quod  ob  causam  datur,  puta  quod 
negotia  mea  adiuta  ab  eo  putavi,  licet  non  sit  factum,  quia  donari  volui, 
quamvis  falso  mihi  persuaserim,  repeti  non  posse.' 

'  Dig.  V.  2.  28;  xxviii.  5.  92;  xxxv.  i.  72.  6;  Inst.  ii.  20.  4,  11,31.  Cf. 
Story,  Equity  Jur.,  §  179. 

*  System,  iii.  p.  368. 


WILL   AND   EXPRESSION.  1 15 

passages  in  the  Roman  lawyers  \  and  is  still  predominant  chap.  vm. 
in  Germany  ^  but  certainly  cannot  be  accepted  as  uni- 
versally true.  An  investigation  into  the  correspondence 
between  the  inner  will  and  its  outward  manifestations 
is  in  most  cases  impossible  ^  and  where  possible  is  in 
many  cases  undesirable.  This  was  so  clearly  perceived 
as  long  ago  as  the  sixteenth  century,  that  Brissonius,  in 
order  to  adapt  the  phraseology  of  Roman  law  to  practical 
exigencies,  boldly  explains  the  term  'velle'  as  meaning 
'  expressis  et  disertis  verbis  testari  et  profiteri  se  velle  \' 

The  cases  in  which  the  Will  and  its  expression  may 
differ  have  been  distinguished  as  follows'^: 

i.  The  difference  may  be  intentional,  resulting  from 
(i)  a  mental  reservation^:  (2)  a  use  of  words  which  would 
usually  amount  to  a  Juristic  Act,  with  an  obvious  absence 
of  an  intention  that  they  should  have  this  effect,  e.  g.  when 
legal  phrases  are  used  in  jest,  or  on  the  stage,  or  in  the 
lecture-room;  or  when  phrases  appropriate  to  a  Juristic 
Act  of  one   kind  are   employed  notoriously  with  a  view 


*  E.  g.  Dig.  xxxiv.  5.  3. 

*  See  e.  g.  Windscheid,  Pand.  i.  §  75,  and  his  Essay  on  Wille  und 
Willenserklarung,  1878;  Zitelmann,  Irrthum  und  Rechtsgeschaft,  1879. 

^  'The  intent  of  a  man  is  uncertain,  and  a  man  should  plead  such 
matter  as  is  or  may  be  known  to  the  jury.'    Y.  B.,  4  Ed.  IV.  8.  9. 
'Warum  kann  der  lebendige  Geist  dem  Geist  nicht  erscheinen? 
Spricht  die  Seele,  so  spricht  ach!  schon  die  Seele  nicht  mehr.' 
Schiller  ( Votivtafeln) ,  cited  by  Ihering,  Geist  des  R.  R.  iii.  p.  445. 

*  Brissonius,  De  Verborum  Significatione,  s.  v.    Cf.  Gluck,  Pand.  iv. 
p.  147. 

*  See  e.  g.  Savigny,  System,  iii.  p.  258;  Windscheid,  Pand.  i.  §§  75-77. 
'  This  case  Savigny  declines  to  consider,  since  it  amoimts  to  a  lie,  iii. 

p.  258,  and  Windscheid,  Wille  und  Willenserklarung,  p.  29,  puts  it  aside 
as  a  case  of  fraud.  So  the  German  Civil  Code,  116:  'Eine  Willens- 
erklarung ist  nicht  deshalb  nichtig,  well  sich  der  Erklarende  insgeheim 
vorbehalt,  das  Erklarte  nicht  zu  wollen.  Die  Erklarung  ist  nichtig,  wenn 
sie  einem  Anderen  gegeniiber  abzugeben  ist,  und  dieser  den  Vorbehalt 
kennt.'  The  only  authority  for  the  nullity  of  a  contract  when  there  was 
a  mental  reservation  seems  to  be  the  decision  against  a  marriage  so 
contracted,  in  Decretal  iv.  i.  26, 

I2 


Il6  ANALYSIS   OF   A   RIGHT. 

CHAP.  vni.  to  the  production  of  a  Juristic  Act  of  another  kind,  e.  g. 
in  the  sale  of  an  inheritance  by  '  mancipatio,'  or  in  the 
proceedings  which  took  place  in  a  '  common  recovery ' ;  or, 
lastly,  when  several  persons  are  agreed  to  put  a  meaning 
upon  their  act  other  than  that  which  it  would  naturally 
bear  ('  simulatio '),  when  the  rule  of  Roman  law  was  '  plus 
valere  quod  agitur  quam  quod  simulate  concipitur  \' 

ii.  The  difference  may  be  unintentional,  i.  e.  it  may  be 
the  result  of  essential  mistake. 

The  prevalent  theory  would  seem  to  be  that  a  want  of 
correspondence  between  the  will  and  its  expression  is  in 
every  case,  except  when  the  result  of  a  mental  reservation, 
a  ground  of  nullity.  It  can,  however,  hardly  be  disputed 
that  all  the  other  cases  of  intentional  non-correspondence 
must,  to  be  ground  for  nullity,  be  known,  or  knowable, 
to  others.  There  is  in  fact  here  no  non-correspondence ;  if 
we  remember  that  expression  consists  not  in  the  literal,  or 
surface,  meaning  of  words  and  deeds,  but  in  the  meaning 
which,  under  all  the  circumstances,  other  persons  are 
justified  in  putting  on  those  words  and  deeds  ^.  It  would 
therefore  seem  that  unintentional  non-correspondence,  i.  e. 
such  non-correspondence  as  arises  from  mistake,  can  alone 
be  represented  as  preventing  the  production  of  a  Juristic 
Act.  Whether  even  this  can  be  conceded  is  open  to  doubt. 
There  is  something  to  be  said  for  the  view,  maintained 
by  a  recent  school  of  writers,  that,  in  enumerating  the 
requisites  of  a  valid  Juristic  Act,  we  may  leave  out  of 
account  the  inscrutable  will,  and  look  solely  to  what 
purports  to  be   its  outward   expression  I    We  shall  hope 


*  Cod.  iv.  22. 

'  '  Inemptis  et  venditis  potius  id  quod  actum  quam  id  quod  dictum  sit 
sequendum  est.'    Dig.  xviii.  i.  i. 

'  This  view  has  been  maintained,  with  reference  to  all  juristic  Acts,  by 
Schall,  Der  Parteiwille  im  Rechtsgeschaft,  1877;  to  Juristic  Acts  inter 
vivos,  by  Rover,  Ueber  die  Bedeutung  des  Willens  bei  Willenserklarungen, 
1874;  to  Contracts,  by  Regelsberger,  Civilr.  Erorterungen,  I.  pp.  17-23, 
1868,  and  Bahr,  in  Ihering's  Jahrb.  xiv.  pp.  393-427,  1875;  to  obligatory 


AGENCY.  117 

later  to  establish  that  this  is  at  all  events  the  case  with   chap.  vm. 
that  species  of  Juristic  Act  which  is  called  a  '  Contract  \' 

The  mode  in  which  the  will  ought  to  be  expressed  for  Form, 
tlie  production  of  any  given  act  is  its  'form.'  In  some 
cases  a  special  form  is  required  by  law,  as  in  Roman  law 
for  a  '  stipulatio,'  and  in  English  law  for  a  contract  not 
to  be  performed  within  a  year,  for  a  marriage,  or  for  the 
probate  of  a  will.  The  form  may  be  such  as  to  preclude 
certain  classes  of  persons  from  doing  the  act,  as  '  peregrini ' 
were  incapable  of  pronouncing  the  solemn  formula  of  the 
stipulation.  In  other  cases  the  form  of  the  act  is  im- 
material, and  the  determination  of  will  is  sometimes 
expressed  only  by  a  course  of  conduct  ^ 

Most,  but  not  all,  juristic  acts  may  in  modern  times  be  Represen- 
performed  through  a  Representative.  A  representative 
whose  authority  extends  only  to  the  communication  of 
the  will  of  his  principal  is  a  mere  messenger,  'nuntius.* 
A  representative  whose  instructions  allow  him  to  exercise 
an  act  of  will  on  behalf  of  his  principal,  to  act  to  some 
extent,  as  it  is  said,  '  at  his  own  discretion,'  is  an  '  Agent.'  Agency. 
His  authority  may  be  express  or  implied,  and  he  may,  in 
his  dealings  with  third  parties,  disclose,  or  he  may  not 
disclose,  with  different  results,  the  fact  that  he  is  acting 
on  behalf  of  another.    The  scanty  and  gradual  admission 


Contracts,  by  Schlossmann,  Der  Vertrag,  pp.  85-140,  1876.  See  Wind- 
scheid,  Wille  und  Willenserklarung.  It  is  temperately  advocated,  prin- 
cipally with  reference  to  Contracts,  by  Leonhard,  Der  Irrthum  bei 
nichtigen  Vertragen,  1 882-3.  I  am  unable  to  share  the  view  of  the  learned 
author  that  Savigny  is  to  be  interpreted  as  agreeing  with  the  newer 
theory,  although  Savigny  confesses  that  a  difference  between  Wille  and 
Willenserklarung  is  important  only  when  it  can  be  known  to  others, 
System,  iii.  p.  258.  So  also  Windscheid,  u.  s.,  has  to  define  'Willens- 
erklarung' as  'Der  Wille  in  seiner  sinnenfalligen  Erscheinung.' 

'  Infra,  Chapter  xii. 

^  So  the  acceptance  of  an  executorship  will  be  inferred  from  acting  as 
an  executor.  In  some  cases  the  natural  inference  from  a  course  of  conduct 
may  be  rebutted  by  'Protest,'  or  'Reservation.'  Cf.  Dig.  xxix.  2.  20; 
XX.  6.  4. 


ii8 


ANALYSIS   OF   A   RIGHT. 


CHAP.  VIII.  of  agency  in  Roman  law  is  a  well-known  chapter  in  the 
history  of  that  system  \  The  tendency  of  modern  times 
is  towards  the  fullest  recognition  of  the  principles  pro- 
claimed in  the  Canon  law :  '  potest  quis  per  ahum  quod 
potest  facere  per  seipsum';  'qui  facit  per  ahum  est 
perinde  ac  si  faciat  per  seipsum^.' 

Juristic  Acts  are  distinguished  into  'one-sided,'  where 
the  will  of  only  one  party  is  active,  as  in  making  a  will, 
accepting  an  inheritance,  or  taking  seisin ;  and  '  two-sided,' 
where  there  is  a  concurrence  of  two  or  more  wills  to 
produce  the  effect  of  the  act,  which  is  then  a  'contract,' 
in  the  widest  sense  of  that  term. 


One-sided 
and  two- 
sided  jur- 
istic acts. 


Character- 
istics of. 


Essen- 
tialia. 


Naturalia. 


Acciden- 
tal ia. 

Nullities. 


The  characteristics  of  a  juristic  act  of  any  given  species 
are  divided  into  those  which  are  ' essentiaha,'  'naturalia,' 
and  'accidentaha  negotii.' 

The  '  essentiaha '  of  the  act  are  the  facts  without  which 
it  cannot  exist,  e.  g.  according  to  Roman  law  there  could 
be  no  contract  of  sale  without  a  price  fixed. 

The  'naturalia'  are  those  facts  which  are  always  pre- 
sumed to  be  part  of  the  transaction  in  question,  though 
the  presumption  may  be  contradicted,  e.  g.  the  presumption 
in  Roman  law  that  the  property  in  goods  sold  did  not 
pass  till  the  price  had  been  paid. 

The  'accidentaha'  are  those  facts  which  in  the  given 
cases  are  not  presumed  and  must  therefore  be  proved. 

A  pretended  act  which  is  deficient  in  any  one  of  the 
'essentiaha  negotii'  is  a  'nullity,'  'void  ab  initio^;  when, 
as  a  rule,  the  deficiency  cannot  be  supplied  by  any  sub- 


'  Cf.  the  distinction  drawn  by  Prof.  Sohm  between  what  he  calls 
'  tutelary  representation,'  in  cases  where  the  principal  is  himself  incapable 
of  performing  a  juristic  act,  which  was  early  recognised  in  Roman  law, 
and  what  he  calls  'procuratorial  representation,'  in  the  case  of  an  agent 
appointed  by  a  principal  under  no  such  disqualification,  which  was 
admitted  by  that  system  only  for  the  purpose  of  acquiring  possession. 
Institutionen,  §  32.     Transl.  p.  145. 

*  C.  68,  de  R.  I.  in  Sext.;  c.  72,  eodem. 


CONDITIONS.  119 

sequent  change  of  circumstances, '  quod  initio  vitiosum  est   chap.  viii. 
non  potest  tractu  temporis  convalescere  \'    In  exceptional 
cases  the  deficiency  can  be  waived,  or  is  cured  by  lapse 
of  time.    In  certain  other  cases  the  act,  though  not  ipso 
facto  void,  is  '  voidable '  at  the  option  of  a  party  concerned. 

The  'naturalia'  and  '  accidentalia '  can  alone  be  varied  Condi- 
by  the  will  of  the  parties  to  the  act.  The  variations 
which  may  thus  be  superadded  to  necessary  -portions  of 
the  act  are  its  '  conditions.'  Some  of  them,  such  as  '  dies ' 
(a  future  event  which  is  certain  to  happen)  and  '  modus ' 
(a  direction  for  the  application  in  a  certain  manner  of 
property  received),  affect  only  its  operation ;  others,  which 
are  conditions  in  the  most  accurate  sense  of  the  term, 
affect  also  its  very  existence.  Such  a  'condition'  may  be 
defined  as  'the  presupposition  of  a  future  uncertain  cir- 
cumstance, upon  which  the  Will  of  the  party  makes  the 
existence  of  his  juristic  act,  or  of  its  contents,  wholly  or 
partially  to  depend  ^.' 

A  condition  is  'suspensive'  when  the  commencement, 
and  '  resolutory '  when  the  termination,  of  the  operation  of 
the  act  is  made  to  depend  upon  its  occurrence. 

*  Dig.  1.  17.  29. 

'  Puchta,  Inst.  ii.  p.  363;  Sohm,  Inst.  §  30. 


CHAPTER  IX. 

THE   LEADING   CLASSIFICATIONS    OF   RIGHTS. 

The  possible  modes  of  classifying  Rights  are  almost 
infinite,  but  four  only  are  of  first-rate  importance.  These 
depend  respectively  — 

I.  Upon    the    public    or    private    character    of    the 

persons  concerned. 
II.  Upon    the    normal    or    abnormal    status    of    the 
persons  concerned, 

III.  Upon    the    limited    or    unlimited    extent  of    the 
person  of  incidence. 

IV.  Upon  the  act    being  due    for    its  own  sake,  or 
being  due  merely  in  default  of  another  act. 

These  various  modes  of  dividing  Rights  have,  be  it 
observed,  nothing  to  do  with  one  another.  They  are  what 
are  called  cross  divisions,  such  as  would  be  divisions  of 
liquids  into  viscous  and  non- viscous,  hot  and  cold,  fermented 
and  non-fermented;  and  consequently,  though  any  given 
right  can  only  exhibit  one  of  the  alternative  characteristics 
of  each  mode  of  division,  yet  it  may  combine  this  with 
either  of  the  characteristics  of  each  of  the  other  modes. 
Just  as  a  liquid  may  be  viscous,  fermented,  and  cold;  or 
viscous,  fermented,  and  hot ;  or  non- viscous,  non-fermented, 


PUBLIC   AND    PRIVATE   LAW.  121 

and  hot ;  and  so  forth,  through  all  the  possible  combina-     chap.  ix. 
tions  of  viscosity,  fermentation,  heat,  and  their  opposites. 

Since  therefore  every  Right  exhibits  either  the  positive  Choice  of 
or  the  negative  characteristic  of  each  of  the  above-men-  cation, 
tioned  modes  of  division,  i.e.  since  every  Right  may  be 
classified  in  accordance  with  its  relations  to  each  and  all 
of  the  above-mentioned  distinctions,  it  becomes  a  question 
which  of  these  is  to  be  adopted  by  the  Jurist  as  being 
the  radical  distinction,  and  in  what  order  the  others  are 
to  be  subordinated  to  it ;  just  as  a  writer  on  fluids  might 
have  to  determine  whether  he  would  set  out  by  classifying 
them  into  viscous  and  non-viscous,  or  into  fermented  and 
non-fermented.  The  question  is  to  be  decided  upon  grounds 
of  convenience.  Whichever  division  is  most  fertile  in 
results  should  obviously  be  selected  as  the  radical  one,  to 
which  the  rest  should  be  subordinated  in  the  order  of  their 
relative  importance. 

The  relative  importance  of  the  four  modes  of  division 
will  perhaps  be  self-evident  when  the  nature  of  each  has 
been  fully  explained. 

I.  A  very  radical  division  of  Rights  is  based  upon   a  Public  and 
broad  distinction  between  the  public  or  private  character  pgj.gQns. 
of  the  persons  with  whom  the  Right  is  connected.     By 
a  *  Public  person '  we  mean  either  the  State,  or  the  sove- 
reign part  of  it,  or  a  body  or  individual  holding  delegated 
authority  under  it\ 

By  a  '  Private  person  *  we  mean  an  individual,  or  col- 
lection of  individuals  however  large,  who,  or  each  one  of 
whom,  is  of  course  a  unit  of  the  State,  but  in  no  sense 
represents  it,  even  for  a  special  purpose. 


*  Cf.  Wolff:  '  Imperium  publicum  nihil  aliud  est  quam  ius  universis  in 
singulos  competens,  quatenus  eorum  actiones  ad  finem  civitatis  diri- 
gendae.'  Ius  Naturae,  Praef.  ad  Part.  viii.  All  authority  is  of  course 
exercised  by  permission  of  the  State,  e.  g.  of  a  father  over  his  family,  but 
it  is  better  to  see  here  only  a  relation  of  private  life,  sanctioned  by  the 
sovereign,  not  a  delegation  of  the  sovereign  power. 


122     THE   LEADING   CLASSIFICATIONS   OF   RIGHTS. 


CHAP.    IX. 

Resulting 
division  of 
Rights, 


and  of 
Law. 


The  radi- 
cal divi- 
sion. 


Value 
of  this 
division. 


When  both  of  the  persons  with  whom  a  right  is  con- 
nected are  private  persons,  the  right  also  is  private.  When 
one  of  the  persons  is  the  State,  while  the  other  is  a  private 
person,  the  right  is  public. 

From  this  division  of  rights  there  results  a  division  of 
Law,  as  the  definer  and  protector  of  Rights,  which,  when 
they  subsist  — 

(i)   Between  subject  and  subject,  are  regulated    by 

'  Private '  law. 
(2)   When  between  State  and  subject,  by  *  Public '  law. 

And  this  distribution  of  the  whole  field  of  law  is  of 
such  capital  importance  that  we  have  no  hesitation  in 
adopting  the  division  of  rights  out  of  which  it  springs  as 
the  radical  division  of  them. 

We  have  now  to  explain  the  application  of  the  distinc- 
tion, and  to  justify  our  assertion  that  this  is  the  radical 
distinction  between  Rights,  and  consequently  between  the 
departments  of  Law. 

By  adopting  this  subdivision  of  municipal  law,  its  whole 
field  falls  at  once  into  two  natural  sections.  On  the  one 
hand  is  the  law  which  regulates  rights  where  one  of  the 
persons  concerned  is  '  public  ' ;  where  the  State  is,  directly 
or  indirectly,  one  of  the  parties.  Here  the  very  power 
which  defines  and  protects  the  right  is  itself  a  party  in- 
terested in  or  affected  by  the  right.  That  is  to  say,  it  is  at 
the  option  of  one  of  the  persons  who  are  concerned  with 
the  right  to  uphold  or  to  extinguish  it.  If  the  State  is  the 
'person  of  inherence,'  it  will  naturally,  though  of  course 
not  of  compulsion,  protect  its  own  right.  If  the  State  is 
the  'person  of  incidence,'  it  may  conceivably  refuse  to 
uphold  the  quasi-right  of  the  person  of  inherence  against 
itself.  If  the  State  executes  laws  which  protect  rights 
against  itself,  it  is  acting  upon  the  maxim  applied  to  their 
own  conduct  by  the  Roman  Emperors:  'Legibus  soluti 
legibus  vivimus  \'     Opposed  to  this  is  the  law  which  regu- 

'  Inst.  ii.  17.  8;   cf.  Dig.  i.  3.  31,  xxxii.  23;  Cod.  i.  14.  4. 


PUBLIC    AND    PRIVATE    LAW.  I23 

lates    rights    where   both   of    the    persons    concerned    are    chap.  ix. 
'private'    persons.     Here    the    parties    interested    in    or 
affected  by  the  right  have  nothing  to  do  with  protecting 
it.    This  is  done  by  the   State,  whenever  the  person  of 
inherence  invokes  its  aid. 

The  punishment,  for  instance,  of  a  traitor  is  a  matter  Examples, 
of  public  law.  The  right  violated  by  him  is  a  public 
right,  because  the  person  in  whom  it  resides  is  the  State. 
The  State  has  a  right  not  to  be  conspired  against.  The 
traitor  violates  this  right,  and  the  same  State  whose  right 
has  been  violated  intervenes  to  protect  itself  and  to  pimish 
the  offender.  If,  on  the  other  hand,  a  carrier  damages 
my  goods,  the  question  raised  is  one  of  private  law.  My 
right  to  have  my  goods  safely  carried  is  a  private  right, 
because  both  the  carrier  and  myself  are  private  indi- 
viduals ;  though  I  am  entitled  to  call  for  the  intervention 
of  the  State  to  obtain  compensation  from  him  for  the 
injury  I  have  sustained  \  It  is  necessary,  in  order  to 
obviate  a  frequent  confusion  upon  the  point,  to  mention 
that  the  same  act  may  often  infringe  both  a  public  and 
a  private  right.  Thus  an  assault  or  a  libel  upon  an 
individual  is  a  violation  of  two  distinct  rights,  i.  e.  of 
the  private  right  of  the  individual  to  be  unmolested,  and 
of  the  pubhc  right  of  the  State  not  to  be  disturbed  by 
acts  constituting,  or  tending  towards,  breaches  of  the 
public  peace. 

The  distribution  of  Law  which  has  been  thus  shown 
to  be  logically  consistent  possesses  other  advantages  also. 
A  moment's  consideration  will  show  the  convenience  of 
an  arrangement  in  accordance  with  which  constitutional, 
ecclesiastical,  criminal,  and  administrative  law,  on  the 
one  hand,  and  the  law  of  contracts,  of  real  and  personal 


'  It  is  noteworthy  that  in  the  Articles  of  Union  between  England  and 
Scotland  (art.  18)  ji  distinction  is  drawn  between  Scots  laws  'concerning 
public  right,  policy,  and  civil  government,  and  those  which  concern 
private  right.' 


124    THE    LEADING   CLASSIFICATIONS    OF    RIGHTS. 


CHAP.   IX. 


Austin's 
rejection 
of  the  dis- 
tinction. 


property,  oi  wills  and  successions,  and  of  torts,  on  the 
other  hand,  form  two  groups,  to  one  or  other  of  which 
every  legal  topic  may  be  readily  referred  \ 

In  recognising  as  the  primary  principle  of  the  division 
of  our  science  the  distinction  between  public  and  private 
persons,  resulting,  through  the  severance  of  public  and 
private  rights,  in  the  opposition  of  public  and  private  law, 
we  have  the  irrecusable  authority  of  the  Roman  jurists. 
'Publicum  ius,'  says  Ulpian,  and  his  words  adopted  by 
Justinian  have  influenced  the  legal  speculation  of  the 
world,  '  est  quod  ad  statum  rei  Romanae  spectat ;  priva- 
tum quod  ad  singulorum  utilitatem  pertinet^.'  Or  as 
Paulus  says :  '  Alterum  utilitas  privatorum,  alterum  vigor 
publicae  disciplinae  postulate' 

But  indeed  the  distinction  is  much  older.  It  is  beauti- 
fully worked  out  by  Aristotle,  who  classifies  offences 
according  to  those  against  whom  they  are  committed. 
They  are  committed,  he  says,  either  against  the  State  (to 
Koivov)  or  an  individual  {^va  rStv  koivwvowtwv).  An  assault 
is  an  injury  to  an  individual,  while  avoiding  military  ser- 
vice is  an  injury  to  the  State  \ 

Although  clearly  grasped  and  stated  by  the  Romans, 
and  borrowed  from  them  by  most  of  the  continental 
nations  as  the  fundamental  basis  of  legal  division,  the 
distinction  has  been  relegated  by  writers  of  repute  to 
a  subordinate  position,  if  not  altogether  rejected. 

Thus  Austin  divides  primarily  the  whole  field  of  law 
into  the  law  '  of  Persons '  and  that '  of  Things,'  subordinat- 
ing to  the  law  of  Persons  the  mighty  cleavage  between 


*  For  Sohm's  eccentric  identification  of  Private  Law  with  the  Law  of 
Property,  see  his  Institutionen,  §  19.    Transl.  p.  98. 

*  Dig.  i.  I.  i;  Inst.  i.  i.  4. 

'  Dig.  xxxix.  iv.  9.  5;  cf.  Cod.  i.  2.  23. 

*  Rhet.  i.e.  13.  So  Demosthenes:  ^em  Sio  flSij  irepl  wv  daXv  ol  vofioi,  wv 
rh  fxfv  fan,  5i'  uv  xp<^ju*0a  dAA^\oij  Kol  (TvvaWdTTOfiev  Kal  irfpl  ruv  iSlwv  &  xp^ 
■Koiflv  BiaipianfOa  Ka\  C'i'M*''  oAoij  ra  irphs  r)fj.ai  aiiTovs,  rh  5'  tv  rp6irov  Sft  t<J! 
Koiv(f  rrjs  iroKfus  eVo  (KaffTov  fjfj.wv  xp^c^a'-      In  Timocrat.  p.  760. 


PUBLIC   AND    PRIVATE   LAW.  12$ 

Public   and   Private   law.      'Public  law,*  he  says,  '^is  the    chap.  ix. 

law  of   political   status  ^'    Our   reasons   for   disapproving 

of  this  arrangement  will  probably  be  sufficiently  apparent 

when   we   have   explained   the   distinction  which   Austin 

thus  treats  as  the  primary  one ;  we  may  however  at  once 

observe  that  when  so  secondary  a  function  is  assigned  to 

the  division  of  law  into  Public  and  Private,  it  is  impossible 

to  find  a  satisfactory  position  in  the  Corpus  luris  for  the 

law  of  Crime  ^ 

Connected  with  Austin's  choice  of  a  primary  principle  His  abso- 
of  division  is  his  doctrine  of  *  absolute'  and  '  relative '  j-gi^tive 
duties',  which  he  explains  as  follows:  'A  relative  ^^*'^^- 
duty  is  incumbent  upon  one  party,  and  correlates  with 
a  right  residing  in  another  party.  In  other  words,  a  rela- 
tive duty  answers  to  a  right  or  imphes  and  is  implied 
by  a  right.  .  .  .  Where  a  duty  is  absolute,  there  is  no 
right  with  which  it  correlates.  There  is  no  right  to 
which  it  answers.  It  neither  implies,  nor  is  implied  by, 
a  right*.  ...  A  relative  duty  corresponds  to  a  right, 
i.  e.  it  is  a  duty  to  be  fulfilled  towards  a  determinate 
person^  or  determinate  persons,  other  than  the  obliged, 
and  other  than  the  sovereign  imposing  the  duty.  .  .  . 
All  absolute  obligations  are  sanctioned  criminally.  They 
do  not  correspond  with  rights  in  the  sovereign  ^.'  He 
classifies  absolute  duties  as  being  (i)  towards  self,  (2)  to- 
wards persons  indefinitely,  or  towards  the  sovereign; 
(3)  duties  not  regarding  persons,  but  regarding  God  or 
the  lower  animals  *. 

All    this    is    unsatisfactory.     Not    only    are    we    quite 


'  Austin,  ii.  p.  71-  He  fortifies  himself  by  the  authority  of  Hale  and 
Blackstone. 

'  See  Austin,  ii.  p.  72.  On  the  difference  between  civil  and  criminal 
law  see  Ed.  Rev.  vol.  54  (1831),  pp.  220,  221. 

'  See  Bentham,  Traitfe  de  Legislation,  i.  pp.  154,  247,  305;  Princ. 
Morals  and  Leg.,  pp.  222,  289,  308. 

*  Austin,  ii.  p.  67.  ^  jjj   jj   p   ^^^ 

•  lb.  ii.  pp.  74-75- 


126    THE    LEADING    CLASSIFICATIONS   OF  RIGHTS. 

CHAP.  IX.  willing  to  concede  that  a  man  can  have  no  '  relative '  duty 
towards  himself,  towards  God,  or  towards  the  animals. 
We  go  further,  and  maintain  that  he  can  have  no  legal 
duty  at  all  towards  these  beings,  whatever  may  be  liis 
moral  or  religious  obligations  towards  them  \  But  we 
deny  that  there  can  be  no  relative  duties  to  persons 
indefinitely,  or,  what  seems  to  amount  to  the  same  thing. 
The  State  to  the  sovereign  ^.  In  other  words,  we  assert  that  the 
las  "g  .  sovereign  may  be  clothed  with  a  right  ^.  That  this  is 
so  may  be  seen  from  the  form  of  indictment,  which  in 
England  runs  'The  King  on  the  prosecution  of  A.  B. 
against  C.  D.' ;  in  America  '  The  State  (or  The  People) 
against  E.  F.  ^'  The  State  is  surely  as  capable  of  possess- 
ing a  right  as  is  the  Corporation  of  London.  The  State 
has  rights,  and  duties  owed  to  it  are  as  relative  as  any 
others, 
and  Indeed  it  is  not  improper  to  talk  of  the  State  as  having 

duties,  namely  such  as  it  prescribes  to  itself,  though  it 
has  the  physical  power  to  disregard,  and  the  constitutional 
power   to  repudiate  them^      Such  duties  we  often  see 


*  Cf .  Hermogenianus :  '  Cum  igitur  hominum  causa  omne  ius  constitu- 
tum  sit.'  Dig.  i.  5.  2;  and  cf.  supra,  p.  90.  It  is  obv-ious  that  laws 
against  suicide,  blasphemy,  or  cruelty  to  animals,  confer  no  rights  capable 
of  being  enforced  at  the  discretion  of  the  beings  for  whose  benefit  they 
may  appear  to  be  intended. 

^  As  laid  down  by  Austin,  ii.  p.  59. 

' '  Inter  subditos  et  Rempublicam  obligationes  non  minus  quam  inter 
homines  singulos  contingunt.'  Zouche,  Elementa  lurisprudentiae,  iv. 
§  viii. 

*  So  some  Recognizances  are  in  the  nature  of  an  acknowledgment  of 
debt  to  the  Crown,  upon  which,  if  it  be  broken,  the  Crown  can  take 
proceedings. 

'  This  view  is  supported  by  Ihering,  who  says  that  the  State  may  very 
well  make  laws  applicable  to  itself  as  well  as  to  its  subjects.  '  Recht,  in 
diesem  Sinne  des  Wortes,  ist  also  die  zweiseitig  verbindende  Kraft  des 
Gesetzes,  die  eigene  Unterordnung  der  Staatsgewalt  unter  die  von  ihr 
selber  erlassenen  Gesetze.'  The  motive  of  the  State  in  submitting  itself 
to  law  is  self-interest,  since  it  can  prosper  only  through  security.  '  Das 
Recht  ist  die  wohlverstandene  Politik  der  Gewalt.'  Der  Zweck  im  Recht, 
i.  pp.  344,  366. 


INTERNATIONAL    LAW.  12/ 

enforced,  e.  g.  in  England,  principally  but  not  exclusively,  chap.  ix. 
by  a  Petition  of  Right,  which  is  lodged  with  the  Home 
Secretary,  and,  after  due  investigation,  receives,  in  suitable 
cases,  the  Royal  fiat  '  let  right  be  done.'  The  subsequent 
proceedings  follow  the  course  of  an  ordinary  action  \ 
This  remedy  is  inapplicable  to  cases  of  tort^. 

The  field  of  law,  strictly  so  called,  may  be  thus  ex-  Intema- 
haustively  divided  between  the  law  which  regulates  rights  l^w. 
between  subject  and  subject  (civis  and  civis)  and  that 
which  regulates  rights  between  the  State  and  its  subjects 
(civitas  and  civis).  But  there  is  a  third  kind  of  law 
which  it  is  for  many  reasons  convenient  to  co-ordinate 
with  the  two  former  kinds,  although  it  can  indeed  be 
described  as  law  only  by  courtesy,  since  the  rights  with 
which  it  is  concerned  cannot  properly  be  described  as 
legal.  It  is  that  body  of  rules,  usually  described  as 
International  law,  which  regulates  the  rights  which  prevail 
between  State  and  State  (civitas  and  civitas)  I 


J  Cf.  infra,  ch.  xvi.  It  is  a  maxim  of  American  law  that  'the  State, 
being  a  Sovereign,  cannot  be  sued.'  Claims  against  the  United  States,  or 
the  States  individually,  could  therefore  be  arranged  only  by  legislative 
action.  The  practical  inconveniences  hence  resulting  seem  to  have  been 
considerable,  and  led  to  the  institution  in  1855  of  a  'Court  of  Claims,' 
which  has  partially  relieved  the  Congress  of  the  United  States  from  the 
decision  of  questions  arising  upon  government  contracts.  As  long  ago  as 
1793,  Judge  Wilson,  in  the  Supreme  Court,  said:  'On  general  principles 
of  right,  shall  the  State,  when  summoned  to  answer  the  fair  demands  of 
its  creditors,  be  permitted,  Proteus-like,  to  assume  a  new  appearance,  and 
to  insult  him  and  justice  by  declaring  "  I  am  a  Sovereign  State"  ?  Surely 
not.'  See  an  article  on  '  Suing  the  State,'  by  Mr.  Davie,  in  the  American 
Law  Review,  1884,  xviii.  p.  814.  An  Act  of  1887  has  given  concurrent 
jurisdiction  with  the  Court  of  Claims  to  all  District  and  Circuit  Courts  of 
the  U.  S.    lb.,  1891,  vol.  xxv.    Cf.  Brvce,  Am.  Commonwealth,  i.  p.  231. 

2  Tobin  V.  The  Queen,  16  C.  B.  N.  S.  310. 

'  A  statement  remarkable  for  its  date  as  to  the  nature  of  International 
law  is  to  be  found  in  Hooker's  Ecclesiastical  Polity,  i.  c.  x.  §  12 :  '  Besides 
that  law  which  simply  concemeth  men  as  men  [morality]  and  that  which 
belongeth  unto  them  as  they  are  men  linked  to  others  in  some  political 
society  [municipal  law],  there  is  a  third  kind  of  law  which  toucheth  aU 
such  several  bodies  pohtic,  so  far  as  one  of  them  hath  public  commerce 
with  another,  and  this  third  is  the  law  of  Nations.'    Montesquieu  dis- 


128    THE   LEADING   CLASSIFICATIONS    OF   RIGHTS. 


Nature  of 
Interna- 
tional 
Law. 


The  differences  between  these  three  kinds  of  Law,  Pri- 
vate, Public,  and  International,  depend  upon  the  presence 
or  absence  of  an  arbiter  of  the  rights  of  the  parties. 

In  Private  law,  which  in  many  respects  is  the  only 
typically  perfect  law,  it  will  be  observed  that  both  the 
parties  concerned  are  private  individuals,  above  and  be- 
tween whom  stands  the  State  as  an  impartial  arbiter.  In 
Public  law  also  the  State  is  present  as  arbiter,  although 
it  is  at  the  same  time  one  of  the  parties  interested.  But 
in  International  law  there  is  no  arbiter  at  all,  but  both 
parties  are  equally  judges  in  their  own  cause.  The  law 
where  a  political  arbiter  is  present,  be  he,  or  be  he  not, 
identical  also  with  one  of  the  parties,  is  often  called 
*  Municipal,'  to  distinguish  it  from  the  so-called  law  which 
is  described  as  'International,'  and  which  has  no  arbiter 
to  which  it  can  appeal  other  than  the  opinion  of  the 
civilised  world. 

It  is  plain  that  if  Law  be  defined  as  we  have  defined 
it\  a  political  arbiter  by  which  it  can  be  enforced  is  of 
its  essence,  and  law  without  an  arbiter  is  a  contradiction 
in  terms.  Convenient  therefore  as  is  on  many  accounts 
the  phrase  '  International  Law,'  to  express  those  rules  of 
conduct  in  accordance  with  which,  either  in  consequence 
of  their  express  consent,  or  in  pursuance  of  the  usage  of 
the  civilised  world,  nations  are  expected  to  act,  it  is 
impossible  to  regard  these  rules  as  being  in  reality  any- 
thing more  than  the  moral  code  of  nations. 

Of  the  three  departments  therefore  into  which  law  may 
be  divided,  having  regard  to  the  political  or  non-political 
character  of  the  persons  whose  rights  it  regulates,  it 
must  be  borne  in  mind  that  what  is  not  very  happily 
described    as    'Municipal    law,'    in    its    two   departments 


tinguishes  'droit  civil,'  'droit  politique,'  'droit  des  gens.'    Esprit  des 
Lois,  i.  c.  3.    D'Aguesseau,  CEuvres,  i.  p.  268,  had  employed  the  preferable 
terminology:    'droit  public,'  'droit  priv6,'  'droit  entre  les  nations.' 
*  Supra,  p.  40. 


LAW    OF    PERSONS    AND   OF   THINGS.  129 

*  Private'  and  'Public,'  is  alone  properly  so  called,  while   chap.  ix. 
'  International  law '  is  law  only  by  analogy. 

II.  The  status  of  the  persons  concerned  is,  as  we  before  Law  of 

Persons 

observed,  another  basis  of  the  division  of  rights.  and  of 

That  is  to  say,  there  are  some  rights  in  which  the  status  Things. 
of  the  persons  concerned  has    to  be    specially  taken  into 
consideration,  while  in  others  this  is  not  the  case. 

This  distinction  has  led  to  a  division  of  Law  into  the 
*law  of  persons'  and  the  'law  of  things';  but  in  order 
to  trace  the  steps  by  which  this  result  was  obtained,  we 
must  go  back  to  our  analysis  of  a  Right  into  its  elements, 


and  to  the  differences  which  exist  between  the  first  and 
last  elements  of  a  Right  on  the  one  hand,  and  its  two 
intermediate  elements  on  the  other  ^ 

We  see  at  once  that,  while  the  intermediate  elements 
consist  of  an  object  and  an  act,  each  of  the  two  extreme 
elements  is  a  person;  and  it  becomes  apparent  that  an 
important  step  will  have  been  taken  towards  understand- 
ing the  variations  in  Rights  if  we  reduce  the  four  terms 
upon  which  those  variations  depend  to  two  only,  by  con- 
solidating the  two  extreme  elements  into  what  has  been 
called,  distinctively  enough,  the  'law  of  persons,'  and  the 
two  intermediate  elements  into  what  has  been  much  more 
ambiguously  called  the  '  law  of  things.' 


Supra,  p.  88. 
K 


130    THE    LEADING   CLASSIFICATIONS   OF    RIGHTS. 

CHAP.  IX.  Although  the  distuiction,  as  now  drawn,  is  of  modern 
m^n  ^^~  date,  the  phraseology  in  which  it  is  expressed  is  as  old 
as  the  time  of  Gains,  and  probably  much  older*.  There 
has  been  considerable  discussion  as  to  the  precise  meaning 
put  by  the  Roman  lawyers  upon  the  terms  '  ius  quod  ad 
personas,'  and  'ius  quod  ad  res  pertinet.'  It  is  certain 
that  this  early  attempt  to  map  out  the  field  of  law  was 
rather  popularly  than  scientifically  conceived.  It  was 
obvious  enough  to  put  on  the  one  side  the '  persons '  for 
whose  sake  all  law  exists,  and  on  the  other,  the  '  things ' 
about  the  enjoyment  of  which  persons  may  dispute.  When 
the  analysis  was  pushed  a  little  further,  persons  were 
divided  into  several  classes,  with  reference  mainly  to  their 
position  in  the  Roman  family,  and  it  was  observed  that 
since  things,  in  the  literal  sense,  are  not  the  only  enjoyable 
objects,  the  term  might  receive  an  artificial  extension,  so 
as  to  cover  '  incorporeal  things,'  and  even  obligations. 

Each  of  the  terms  in  question  is  open  to  objection  on 
the  ground  of  ambiguity. 
Ius  quod  The  '  Ius  quod  ad  personas  pertinet '  aptly  enough  ex- 

sonas  presses  the  law  as  to  those  variations  in    rights  which 

arise  from  varieties  in  the  Persons  who  are  connected 
with  them.  But  it  is  unfortunately  also  used  by  the 
Roman  jurists  to  express  what  the  Germans  call '  Familien- 
recht ' ;  i,  e.  to  express,  not  only  the  variation  in  rights 
which  is  caused  by  certain  special  variations  in  personality, 
but  also  the  special  rights  which  belong  to  certain  personal 
relationships  ^.    Not  merely,  for  instance,  the  legal  exemp- 

'  '  Omne  autem  ius  quo  utimur  vel  ad  personas  pertinet,  vel  ad  res.' 
Inst.  i.  8.  He  adds  '  vel  ad  actiones,'  i.  e.  to  Procedure,  which  does  not 
interfere  with  his  division  of  the  field  of  substantive  law.  The  distinc- 
tion was  probably  drawn  in  the  edictum  perpetuum.  See  the  fragm.  of 
Hermogenianus, '  Primo  de  personarum  statu,  et  post  de  ceteris,  ordinem 
edicti  perpetui  secuti.'  Dig.  i.  5.  2.  From  the  use  by  Gains  of  'vel' 
rather  than  'aut,'  it  has  been  argued  that  the  passage  is  an  enumera- 
tion rather  of  points  of  view  than  of  distinct  classes.  See  Dr.  Emerton's 
tract  on  'The  threefold  division  of  Roman  law,'  1888. 

'  The  opinions  as  to  what  Gaius  meant  by  'Ius  quod  ad  personas 


LAW   OF    PERSONS    AND    OF   THINGS.  131 

tions  and  disabilities  of  infants  and  femes  covert,  but  also    chap.  ix. 
the  rights  of   a  father  over  his  son,  a  husband  over  his 
wife,  and  a  guardian  over  his  ward. 

Such  questions,  however,  as  how  far  a  woman's  capacity 
for  contracting  is  affected  by  coverture,  and  what  are  the 
mutual  rights  of  husband  and  wife,  are  radically  different 
in  character. 

The  '  lus  quod  ad  res  pertinet '  very  ambiguously  in-  Quod  ad 
dicates  the  department  of  law  which  treats  of  such  modi-  ^^  P^^^- 
fications  of  rights  as  result  from  varieties  in  the  objects 
or  in  the  acts  with  which  they  are  concerned.  That  the 
Roman  jurists  meant  to  cover  these  modifications  by  this 
phrase  is  quite  clear  from  their  own  explanation  of  what 
they  include  under  the  term  '  Things.'  '  Res,'  they  tell 
us,  are  either  'corporeal,'  things  which  can  be  touched, 
such  as  a  farm,  a  slave;  or  'incorporeal,'  which  cannot 
be  touched,  consisting  in  right  only,  such  as  a  right  of 
servitude,  a  right  of  action,  a  right  arising  out  of  con- 
tract \  Now  'corporeal'  things  are  obviously  what  we 
have  called  the  'objects  '  of  the  right;  'incorporeal'  things 
are  the  advantages  which  the  person  entitled  can  insist 
upon ;  in  other  words,  '  the  acts  or  forbearances  '  to  which 
he  is  entitled. 

We  may  identify,  therefore,  though  only  approximately, 
the  two  extreme  members  of  our  series  with  what  the 
Romans  called  the  '  law  of  Persons '  and  the  two  inter- 
mediate members  with  what  they  called  '  the  law  relating 
to  Things.'  The  division  turning  upon  the  distinction 
between,  on  the  one  hand,  the  persons  in  whom  a  right 
resides  or  against  whom  it  is  available ;  and,  on  the  other 
hand,  the  objects  over  which  it  is  exercised  and  the  acts 
by  means  of  which  it  is  enjoyed. 


pertinet'  are  summed  up  by  Savigny,  System,  i.  p.  398,  cf.  ii.  App.  v, 
who  asserts  that  the  term  is  equivalent  to  '  Familienrecht.' 

'  Inst.  ii.  2.  pr.    Cf. '  Habetur  .  .  .  quod  peti  potest.'     Dig.  1,  16,  143; 
and  the  phrases  chose  in  possession  and  chose  in  action, 

K  2 


132    THE    LEADING   CLASSIFICATIONS    OF   RIGHTS. 


Equiva- 
lent 
phrases. 


Normal 
and  ab- 
normal 
rights. 


The  dis- 
tinction 
explained. 


It  will  be  observed  that  though  the  Roman  writers 
shorten  'ius  quod  ad  personas  pertinet'  into  'ius  per- 
sonarum*,'  they  never  abbreviate  the  'ius  quod  ad  res 
pertinet '  into  *  ius  rerum.'  Yet  their  later  followers  have 
talked  of  'ius  rerum,'  as  well  as  of  'ius  personarum,' 
thereby  causing  not  a  little  confusion ;  and  Sir  Matthew 
Hale,  adopting  these  phrases,  mistranslates  them  'Rights 
of  Persons  and  of  Things,'  and  is  followed  by  Blackstone  ^. 

The  distinction,  which  probably  made  its  first  appear- 
ance in  the  Edict,  which  was  adopted  by  Justinian,  and 
is  recognised  more  or  less  by  almost  all  modern  jurists  \ 
has  also  been  expressed  in  other  ways. 

Bentham's  distribution  of  the  law  into  '  particular '  and 

*  general '  amounts  to  much  the  same  thing  *. 

M.  Blondeau  means  to  indicate  the  same  distinction 
when  he  divides  the  law  into  that  of  'capables'  and  of 

*  incapables  ^' 

Mr.  Westlake  defines  *  status '  as  *  that  peculiar  condition 
of  a  person  whereby  what  is  law  for  the  average  citizen 
is  not  law  for  him  *.' 

Mr.  Poste,  guided  perhaps  by  reminiscences  of  Aristotle, 
opposes  the  law  of  *  equals '  to  that  of  '  unequals '.' 

It  is  not  easy  to  find  apt  terms  to  express  the  true 
nature  of  the  distinction.  None  of  those  already  enu- 
merated are  satisfactory,  and  we  would  venture  to  suggest 
the  adoption  in  their  place  of  'normal'  and  'abnormal.' 
Why  we  prefer  these  terms  to  any  others  will  appear 
from  the  closer  examination  of  the  subject  upon  which 
we  are  about  to  enter. 

A  Right  varies  with  a  variation  in  any  one  of  the  series 
of  its  constituent  elements.      The  possible  variations  in 

*  Inst.  ii.  I.  pr.  ^  Comm.  i.  p.  122. 

^  See  Thibaut,  Versuche,  ii.  (iber  ius  rer.  et  pers.;  Savigny,  System,  i. 
p.  393;  Austin,  ii.  pp.  383,  398. 

*  Traits,  i.  pp.  150,  259,  294,  299;  Austin,  ii.  p.  418;  iii.  p.  225. 

*  Cited  by  Austin,  ii.  pp.  4",  4i7- 

'  Private  International  Law,  ed.  i.  §  89.  ^  Gains,  i.  §  8. 


NORMAL   AND   ABNORMAL   RIGHTS. 


133 


the  two  extreme  terms  of  the  series  are,  however,  far    chap.  ix. 

fewer  than  in  the  two  intermediate  terms.    This  is  the 

case,  first,  because  both  of  the  extreme  terms  are  Persons, 

so  that  they  are  subject  to  the  same  sets  of  variations; 

and,  secondly,  because  as  a  matter  of  fact  the  possible 

varieties  in  juristic  personality  are  far  fewer  than  those 

in  the  juristic  character  of  objects  or  acts. 

The  Law  of  Persons,  as  a  source  of  variety  in  rights,  The  order 
is  therefore    distinct    from  and    much  smaller    than  the  ^' 

residue  of  the  Law,  which  is  generally  called  the  Law  of 
Things.  The  jurist  may  make  either  one  or  the  other 
species  of  characteristics  his  starting-point  in  considering 
the  aggregate  of  rights  which  make  up  the  whole  field 
of  Law.  He  may  consider  seriatim  the  possible  varieties 
in  the  persons  with  whom  rights  may  be  connected; 
treating  under  each  personality  of  the  various  objects 
and  acts  with  which  it  may  be  combined:  or,  he  may 
start  from  the  variations  in  objects  and  acts;  considering 
by  way  of  supplement  the  modifications  which  the  rights 
connected  with  these  undergo  in  each  case  from  varieties 
in  personality.  Thus  the  aggregate  of  rights  may  be 
likened  to  a  figure  of  two  dimensions:  the  shorter  of 
these  dimensions  representing  the  Law  of  Persons;  the 
longer  the  Law  of  Things.    And  the  figure  may  be  sup- 


Law  of  Things. 


Ship- 
ping. 

Bank- 
ing. 

Torts. 

Family. 

Succes- 
sion. 

&c. 

Normal. 

Lunatic. 

Alien. 

Covert. 

Infant. 

&c. 

134    THE    LEADING   CLASSIFICATIONS    OF    RIGHTS. 

iMAP.  IX.  posed  to  be  marked  off  into  squares,  like  a  chessboard, 
by  the  intersection  of  a  few  horizontal  lines  expressing 
the  possible  varieties  of  personality,  and  of  a  multitude 
of  vertical  lines  expressing  the  possible  varieties  of  object 
or  act. 

It  is  a  mere  choice  of  the  more  convenient  course, 
whether  the  jurist  makes  the  '  personal '  dimension  of  the 
right  or  its  '  real '  dimension  the  basis  of  his  classification. 
Now  as  a  matter  of  fact  the  personal  dimension  is  one 
which  in  the  majority  of  cases  needs  no  consideration 
at  all.  When  the  Persons  both  of  inherence  and  of  in- 
cidence are  human  beings  who  are  citizens  of  full  age 
and  sound  mind,  not  under  coverture,  or  convicted  of 
crime,  in  other  words  when  their  personality  is  'normal,' 
the  personal  dimension  of  the  right  in  question  is  wholly 
disregarded.  It  is  only  when  one  or  both  of  the  Persons 
concerned  are  '  abnormal,'  i.  e.  are  '  artificial '  persons,  or 
infants,  or  under  coverture,  or  convict,  or  lunatic,  and  so 
forth,  that  the  special  effect  upon  the  right  in  question 
of  this  abnormal  Personality  has  to  be  considered.  Since 
therefore  in  most  cases  Personality  is  not  considered  at 
all ;  and  since,  when  it  is  considered,  because  abnormal, 
its  aberrations  are  confined  within  very  narrow  limits  of 
possibility ;  it  would  form  a  most  inconvenient  basis  for  the 
classification  of  rights,  compared  with  those  characteristics 
which  depend  upon  the  object  or  act  with  which  the  right 
is  concerned.  The  variations  of  these  characteristics  are 
incalculably  numerous,  and  to  an  account  of  the  right  in 
question,  founded  upon  these,  it  is  easy  to  add,  by  way 
of  supplement,  any  modification  which  it  may  receive  on 
account  of  abnormal  personality. 

What  has  been  said  may  be  made  clearer  by  an  in- 
stance. The  right  of  an  infant  to  build  on  his  land  so 
as  to  obstruct  the  windows  of  the  house  of  his  neigh- 
bour who  is  a  person  of  unsound  mind,  is  capable  of 
being  considered  from  at  least  four  points  of  view,  viz. 


THE   TEST    OF    A    STATUS.  I35 

as  a  branch  of  the  law  (i)  of  Infancy,  (2)  of  Ownership,  chap.  ix. 
(3)  of  Servitudes,  (4)  of  Lunacy.  But  it  is  clear  that 
the  first  and  the  last  points  of  view,  (i)  and  (4),  belong 
to  one  and  the  same  department  of  law,  viz.  the  way  in 
which  rights  are  varied  by  variations  in  the  conditions 
of  Persons ;  and  a  little  reflection  will  show  that  these 
variations  are  not  very  numerous ;  infancy,  lunacy,  cover- 
ture, alienage  and  a  few  more,  nearly  exhaust  the  list  of 
varieties  in  personality;  while,  on  the  contrary,  the  in- 
termediate points  of  view,  (2)  and  (3),  raise  classes  of 
questions  which  are  of  almost  unlimited  extent,  because 
they  are  bounded  only  by  the  varieties  of  physical  objects 
and  the  modes  in  which  they  may  be  treated. 

By  abstracting  the  law  of  Persons  from  the  rest  of  the 
law  the  description  of  a  right  is  thus  much  simplified. 
Two  terms  only,  instead  of  four,  have  primarily  to  be 
considered,  viz.  the  physical  object  and  the  act.  Only 
when  there  is  any  peculiarity  in  the  condition  of  the 
person  of  inherence  or  of  incidence  need  the  first  or 
fourth  terms  of  the  series,  now  consolidated  into  the  '  Law 
of  Persons,'  be  considered  at  all. 

The  inquiry  into  the  law  of  Persons  is  thus  supple- 
mentary and  secondary  to  that  into  the  residue  of  the 
law,  commonly  called  the  law  of  Things.  The  order  of 
exposition,  either  of  the  science  of  Jurisprudence,  or  of  a 
body  of  law,  should,  therefore,  be :  first,  the  law  generally, 
without  regard  to  peculiarities  of  personality ;  secondly, 
the  law  of  Persons.  Austin  is  doubtless  right  in  pointing 
out  that  Blackstone  made  a  mistake  in  discussing  what 
he  calls  '  the  Rights  of  Persons '  before  the  '  Rights 
of  Things ' ;  herein  following  the  Roman  institutional 
writers,  but  departing  from  the  better  arrangement  of 
his  great  forerunner  Sir  Matthew  Hale. 

Assuming  it  to  be  convenient  to  draw  a  line  between  Where 
the  law  of  Things  and  that  of  Persons,  where  is  the  line  ^jj^^^jj^ 
to  be  drawn?    The  tests  which  have  been  proposed  of^^^"^^^? 


136     THE   LEADING   CLASSIFICATIONS    OF  RIGHTS. 

CHAP.  IX.  the  characteristics  of  the  law  that  ought  to  be  treated  of 
under  the  latter  head  are  various  and  unsatisfactory.  The 
marks  of  a  status  or  condition  are,  according  to  Austin, 
three.  '  First,  it  resides  in  a  person  as  member  of  a  class. 
Secondly,  the  rights  and  duties,  capacities  and  incapacities, 
composing  the  status  or  condition,  regard  or  interest  spe- 
cially the  persons  of  that  class.  Thirdly,  these  rights  and 
duties,  capacities  and  incapacities,  are  so  considerable  in 
number  that  they  give  a  conspicuous  character  to  the  in- 
dividual, or  extensively  influence  his  relations  with  other 
members  of  society.'  This  last  quality  is,  he  thinks,  not 
essential,  and  would  not  be  regarded  in  a  body  of  law 
rationally  constructed  \ 

These  marks  are  however  not  sufficiently  distinctive,  as 
they  wiU  be  found  not  only  in  infants  or  lunatics,  to  whom 
a  special  status  is  generally  attributed,  but  also  in  land- 
lords or  stockbrokers,  to  whom  as  members  of  a  class 
nothing  of  the  sort  is  conceded.  It  has  been  ingeniously 
suggested  that  'the  essential  feature  of  a  status  is  that 
the  rights  and  liabilities  affecting  the  class  which  con- 
stitutes each  particular  status  are  such  as  no  member  of 
the  class  can  vary  by  contract^.'  But  something  more  is 
necessary. 

The  true  test  is  surely  this.  Does  the  peculiarity  of 
the  Personality  arise  from  anything  unconnected  with  the 
nature  of  the  act  itself  which  the  person  of  inherence  can 
enforce  against  the  person  of  incidence  ? 

In  order  to  determine,  for  instance,  whether  the  rights  of 
landlords  should  be  considered  under  the  law  of  persons, 
we  must  ask  whether  landlords  as  a  class  have  any  juristic 


•  Jurisprudence,  Lect.  xl.  p.  712,  ed.  iii.  Cf.  Bentham,  Princ.  Morals 
and  Legislation,  c.  16. 

*  Sir  W.  R.  Anson,  Principles  of  Contract,  ed.  i.  p.  328.  Mr.  Hunter's 
proposed  use  of  'status'  as  covering  'those  cases  where  a  permanent 
relationship  is  created  by  the  law:  when  duties  imposed  upon  a  person 
are  imposed  upon  him  as  a  member  of  a  class'  (Roman  Law,  p.  475).  is 
still  more  vague  than  those  above  mentioned. 


THE    TEST   OF  A   STATUS.  I37 

peculiarities  unconnected  with    the  acts  which  they  are    chap.  ix. 
entitled  to  demand  from  their  tenants;  such  as  the  pay- 
ment   of    rent,  the    observance  of    covenants,  &c.    They 
clearly  have  not.  A  landlord  merely  means  a  person  who 
is  entitled  to  these  acts.    On  the  other  hand,  suppose  the 
landlord  to  be  an  infant;  here  at  once  a  whole  set  of 
characteristics  are  present,  modifying  the  right  to  rent,  &c. 
and  quite  unconnected  with  it.    Nor  is  it  only  because 
the  same  person  sustains  the  two  characters  of  infant  and 
landlord  that  this  is  the  case;  a  man  may  be  a  pawn 
broker  and  landlord,  but  the  rights  as  landlord  will  not 
be  affected  by  his  occupation  as  pawnbroker.    The  per- 
sonality recognised  in  the  law  of  persons  is  such  as  modifies 
indefinitely  the  legal  relations  into  which  the  individual 
clothed  with  the  personality  may  enter. 
Of  such  affections  of  Personality  there  are  two  classes :  —  Classes  of 
(i)  The  person  may  be  '  artificial,' i.  e.  may  be  not  aaiity. 

human  being. 
(2)  The  person  may  be  under  disability,  or  may  enjoy 
exemption,  on  account  of  age,  sex,  mental  in- 
capacity, crime,  alienage,  or  public  station. 
All  of  these  are  abnormal  deviations  from  the  ordinary 
case  of  both  parties  concerned  in  a  right  being  human 
beings,  under  no  special  and  far-reaching  disability  or 
exemption.  When  the  disability  or  exemption  is  not  of  a 
far-reaching  character,  it  will  not  be  treated  in  practice  as 
founding  a  special  status,  although,  upon  the  principles 
above  stated,  otherwise  capable  of  being  so  treated.  Thus, 
as  a  rule,  soldiers,  or  blind,  or  illegitimate,  persons  are  not 
held  to  occupy  a  status,  although  in  several  respects,  and 
in  particular  with  reference  to  testamentary  powers  and 
rights  of  succeeding  ab  intestato^  they  may  respectively 
exhibit  peculiarities  which  are  not  involved  in  the  state- 
ment that  they  are  in  military  service,  blind,  or  illegitimate  *. 

*  The    modern    civilians    recognise   status    founded    upon    physical 
characteristics  as  ' naturales,'  opposing  them  to    the    'status    civiles' 


138     THE    LEADING   CLASSIFICATIONS   OF  RIGHTS. 

We  have  already  pointed  out  what  we  conceive  to  be 
Austin's  mistake  in  subordinating  to  the  distinction  now 
under  discussion,  what  is  in  our  opinion  the  still  more 
radical  one  between  '  Public,' '  Private,'  and  '  International ' 
Law;  a  mistake  to  which  we  attribute  much  of  the  im- 
perfection which  mars  the  result  of  the  labours  of  this 
great  jurist. 


The  dis- 
tinction is 
traceable 


in  Private 
law, 


in  Public 
law, 


The  contrast  between  the  law  of  persons  and  of  things, 
or  between  '  normal '  and  '  abnormal '  law,  i.  e.  the  law  '  of 
normal '  and  of  '  abnormal  persons,'  is  sharply  defined  only 
in  one  of  the  departments  into  which  the  whole  subject 
may  be  divided  in  accordance  with  this  threefold  distinc- 
tion, though  something  analogous  to  it  may  be  detected 
in  the  others. 

In  Private  law,  where  all  the  characteristics  of  law  are 
fully  present,  the  law  of  Persons  is,  as  we  have  ah-eady 
described  it,  a  statement  of  the  ways  in  which  the  general 
law  is  modified  by  varieties  of  status ;  while  the  law  of 
Things  is  a  description  of  the  various  kinds  of  rights 
enjoyed  in  private  capacities  by  persons  as  being  within 
the  jurisdiction  of  a  State,  but  not  as  being  in  any  way 
representative  of  the  sovereign  power  in  the  State. 

In  Public  law,  which,  as  we  have  seen,  possesses  the 
characteristics  of  law  in  a  lower  degree  of  development, 
the  distinction  is  but  faintly  traceable.    What  is  analogous 


(libertatis,  civitatis,  and  familiae)  recognised  in  the  older  Roman  law. 
Savigny  objects  to  this,  and  to  the  vague  definition  of  status  as  '  a  quality 
by  means  of  which  a  man  has  certain  rights,'  that  the  list  of  status 
would  be  interminable,  and  the  law  of  status  would  become  identical 
with  the  whole  body  of  the  law.  System,  ii.  p.  445,  Appendix.  His 
objection  would  not  apply  to  such  a  definition  as  is  now  proposed. 
Prof.  A.  V.  Dicey,  in  a  most  able  review  of  the  first  edition  of  this 
book,  points  out  that  status  as  here  defined  would  be  one  of  the  '  real 
kinds'  of  J.  S.  Mill, '  which  have,  besides  the  patent  qualities  which  have 
led  us  so  to  class  them,  an  indefinite  number  of  common  characteristics 
V  hich  we  have  not  before  our  minds,  and  may  not  even  have  within  our 
knowledge.'    Law  Magazine,  1880,  p.  400, 


RIGHTS    IN    REM    AND    IN    PERSONAM.  139 

to  the  law  of  Persons  here  consists  in  a  description  of  the    chap.  ix. 
State  as  a  whole,  of  its  ruling  body,  of  bodies  or  persons 
enjoying  delegated  ruling  power,  and  of  its   constituent 
members  as  such ;  in  short,  in  what  is  usually  known  as 
'  Constitutional '  law.    On  the  other  hand,  the  residue  of 
Public  law  has  its  analogies  to  the  law  of  Things.    It 
consists  in  — 
(i)  A  description  of  the  way  in  which  the  different  dele- 
gacies of  the  governing  body  are  set  in  motion.  This 
may  be  called  '  Administrative '  law. 
(2)  A  description  of  those  rights  of  the  community  at  large 
which  are  violated  by  injuries  done  to  it  as  a  whole, 
or  to  any  member  of  it,  and  of  the  punishments  with 
which  infractions  of  such  rights  are  visited.    This  is 
commonly  called  '  Criminal '  or  '  Penal '  law ;  because 
the  usual  mode  of  stating  and  circumscribing  such 
rights  is  by  defining  violations  of  them,  and  by  pre- 
scribing the  punishment  due  to  such  violations. 
The  nearest  approach   to  a  law  of    Persons  in  Inter-  in  Inter- 
national law  is  contained  in  that  portion  of  the  science  j^^ 
which  describes  the  characteristics  of  a  fully  Sovereign 
State,  and  the  modes  in  which  the  rights  of  a  State  are 
affected  by  the  absence  of  such  characteristics. 

III.  Another  grand  division  of  rights  turns  upon  the  Rights  in 
limited  or  unlimited  extent  of  the  person  of  incidence,  by  ■personam. 
which  phrase,  as  may  be  remembered,  we  mean  the  person 
against  whom  the  right  is  available.  A  right  is  available 
either  against  a  definite  person  or  persons,  or  against  all 
persons  indefinitely.  A  servant,  for  instance,  has  a  right 
to  his  wages  for  the  work  he  has  done,  available  against 
a  definite  individual,  his  master;  while  the  owner  of  a 
garden  has  a  right  to  its  exclusive  enjoyment  available 
against  no  one  individual  more  than  another,  but  against 
everybody. 

This  distinction  between  rights  has  been  expressed  by 


I40    THE   LEADING    CLASSIFICATIONS    OF   RIGHTS. 


History  of 
the  terms. 


Equiva- 
lent terms. 


calling  a  right  of  the  definite  kind  a  right  in  personam,, 
of  the  indefinite  kind  a  right  in  rem.  And  these  terms, 
though  not  perfectly  satisfactory,  have  obtained  a  currency 
which  is  of  itself  a  recommendation,  and  moreover  are 
perhaps  as  good  as  any  substitutes  which  could  be  sug- 
gested for  them.  The  former  term  indicates  with  tolerable 
perspicuity  a  right  available'  in  personam  (certam),'  against 
a  definite  individual,  while  the  latter  implies  that  the 
right  is  capable  of  exercise  over  its  object,  '  in  rem,'  with- 
out reference  to  any  one  person  more  than  another. 

The  use  of  these  terms  to  distinguish  between  two 
classes  of  rights  is  of  comparatively  recent  date,  but  is 
quite  in  harmony  with  their  use  by  the  classical  Roman 
jurists,  in  distinguishing  between  different  classes  of  stipu- 
lations, pacts,  actions,  exceptions  and  edicts.  Any  of  these 
are  said  to  be  'in  personam'  if  referring  to  the  duties 
of  a  given  individual,  'in  rem'  if  operating  generally. 
Thus  we  are  told :  '  Praetor  in  hoc  edicto,'  i.  e.  quod  metus 
causa,  'generaliter  et  in  rem  loquitur,  nee  adicit  a  quo 
gestum.'  'Pactorum  quaedam  in  rem  sunt,  quaedam  in 
personam.  In  rem  sunt,  quotiens  generaliter  paciscor  ne 
petam;  in  personam  quotiens  ne  a  persona  petam,  id  est 
ne  a  Lucio  Titio  petam  \'  This  use  is  also  analogous  to 
the  description  of  judgments  as  being  in  rem  or  in  per- 
sonam^ and  to  the  mediaeval  distinction  between  '  statuta 
realia '  and '  personalia  ^.' 

The  same  opposition  has  also  been  denoted  by  the  less 
descriptive  terms  '  ius  in  re '  and '  ius  ad  rem,'  which  first 
occur  in  the  canon  law ' ;  and  by  the  terms  '  absolute ' 


*  Dig.  iv.  2.  9;  ii.  14.  7.  8.  Of.  ii.  14.  57;  vii.  9.  5;  xxxix.  i.  10;  xxxix. 
2.  19;  xliv.  4.  2.  2;  xliv.  4.  4.  33;  Gai.  Inst.  iv.  i.  4- 

*  See  Chapter  xviii,  infra. 

*  C.  40  de  cone,  praeb.  in  Sext.;  c.  8  de  praeb.  eod.  'Ius  in  re'  is 
classical,  e.g.  Dig.  xxxix.  2.  19.  The  distinction  is  thus  explained  bj' 
Huber:  'Ius  in  re  est  facultas  homini  ad  rem  competens,  sine  respectu 
ad  certam  personam.  Ius  ad  rem  est  facultas  competens  in  aliam  personam 
ut  nobis  aliquid  det  vel  faciat.'  Praelect.  ii.  i.  12.  Cf.  Gliick,  Pandekten, 
ii.  §  175;  Thibaut,  Versuche,  ii.  p.  26. 


RIGHTS    ANTECEDENT  AND   REMEDIAL.        14I 

and  *  relative,'  which    by  employment   with    many  other    chap.  ix. 
meanings  are  too  void  of  precision  for  the  purpose. 

Longer,  but  more  complete,  expressions  are  'rights 
against  individuals,'  and  'rights  against  the  world,'  and 
these,  originally  suggested  by  Hugo\  are  perfectly  un- 
objectionable. 

If  the  terms  'in  rem'  and 'in  personam'  were  to  be 
discarded,  we  should  prefer  to  speak  of  'rights  of  de- 
terminate,' and  'rights  of  indeterminate  incidence.' 

IV.  The    last    of    the    great    divisions    of    rights    dis- Rights 
tinguishes  those  where  the  act  is  due  for  its  own   sake,  ^^jj^.*^ j 
from  those  where  it  is  made  due  merely  on  default  of '"^^^edial. 
another    act.    The    former    kind    have    been    by    various 
writers   styled    rights  'primary,'  'sanctioned,'  'of    enjoy- 
ment';   the   latter   kind    have   been   described    as   rights 
'sanctioning,'  'secondary,'  ' restitutory,'  'of   redress.'    We 
prefer    to    distinguish    them    as    rights  'antecedent'  and 
rights  'remedial.' 

The  nature  of  the  distinction  is  suflQciently  simple.  The 
rights  of  the  owner  of  a  garden  not  to  have  it  trespassed 
upon,  of  a  servant  to  have  his  wages  paid,  of  a  purchaser 
to  have  his  goods  delivered  to  him,  are  all  of  the  former 
kind,  viz.  rights  'antecedent,'  which  exist  before  any 
wrongful  act  or  omission.  They  are  rights  which  are 
given  for  their  own  sake.  The  right  of  the  owner  of 
a  garden  to  get  damages  from  a  party  of  men  who  have 
broken  into  his  grounds,  of  a  servant  to  sue  his  master 
for  unpaid  wages,  of  a  purchaser  to  get  damages  from 
a  vendor  who  refuses  to  deliver  the  goods  sold,  are,  on 
the  other  hand,  of  the  latter  kind,  or  rights  'remedial'; 
they  are  given  merely  in  substitution  or  compensation 
for  rights  antecedent,  the  exercise  of  which  has  been 
impeded,  or  which  have  turned  out  not  to  be  available. 

*  Lehrbuch  eines  civjfotischen  Cursus,  v.  p.  72, 


142     THE   LEADING   CLASSIFICATIONS    OF   RIGHTS. 


The  result- 
ing divi- 
sions of 
law. 


If  all  went  smoothly,  antecedent,  or  primary,  rights 
would  alone  exist.  Remedial,  or  sanctioning,  rights  are 
merely  part  of  the  machinery  provided  by  the  State  for 
the  redress  of  injury  done  to  antecedent  rights.  This 
whole  department  of  law  is,  in  an  especial  sense,  '  added 
because  of  transgressions.' 

Out  of  each  of  the  four  grand  divisions  of  rights  there 
arises  also  a  grand  division  of  law.  Including  therefore 
the  distinction  between  'substantive'  and  'adjective'  law, 
explained  in  a  former  chapter*,  we  have  five  main  prin- 
ciples upon  which  the  field  of  law  may  be  divided,  viz. 
into — 

Substantive  and  Adjective  law; 

Private,  Public,  and  International  law; 

Normal  and  Abnormal  law; 

The  law  of  rights  'in  rem,'  and  of  rights  'in  per- 
sonam ' ; 

The  law  of  rights  '  antecedent,'  and  of  rights  '  remedial.' 

One  or  other  of  these  principles  must  be  selected  as 

determining  the  fundamental  division.    Each  limb  of  the 

subject  may  be  then  subdivided  in  accordance  with  the 

other  principles  one  after  another. 


The  pri- 
mary di- 
vision. 


Adopting  as  the  primary  division  of  rights  that  which 
turns  upon  the  distinction  between  the  political  or  non- 
political  quality  of  the  persons  with  whom  they  are  con- 
nected, we  shall  divide  law,  in  the  first  instance,  into  — 

Private, 

Public,  and 

International ; 
and  shall  deal  with  each  of  these  gi'eat  topics  in  the  order 
in  which  we  have  enumerated  them.  But  before  doing 
so,  we  propose  to  call  attention  to  certain  characteristics 
of  rights  generally,  which  may  be  now  most  conveniently 
explained,  once  for  all. 

>  p.  86. 


CHAPTER   X. 

RIGHTS  AT   REST   AND   IN   MOTION. 

Rights  may  be  regarded  under  two  aspects,  either  as  The  na- 
at  rest  or  as  in  motion.    In  other  words,  the  jurist  has  causes  of 
to  consider  not  only  the  nature,  or  scope,  of  any  given  "S^ts. 
right,  but  also  the  causes  which  originate  or  terminate 
its  connection  with  the  person  in  whom  it  resides  \    He 
must  include,  for  instance,  in  a  survey  of  the  law  of  real 
property,  not  only  an  account  of  the  various  rights  of  the 
owner  of  land,  but  also  a  description  of  the  various  kinds 
of  '  titles.'     He  has    therefore  to    determine  whether  to  Method  of 
divide  his  work  into  two  halves,  one  of  wliich  shall  deal^"^ 
with  rights,  and    the    other  with    the   causes    by  which 
rights    are  connected  or  disconnected  with    persons ;    or 
whether  to  make  rights  his  sole  topic,  bringing  in  under 
each  kind  of  right  all  needful  information  as  to  the  causes 
by  which  it  is  set  in  motion. 

We  propose  to  adopt  the  latter  alternative,  as  presenting, 
upon  the  whole,  the  fewer  difficulties.  We  shall,  at  any 
rate,  be  spared  the  awkwardness  of  discussing  possessory 
rights  apart  from  the  acts  of  possession  out  of  which  they 
arise,  or  contractual  rights  apart  from  the  agreements  to 
which  they  owe  their  existence.     Some  repetition  is  no 

'  Supra,  p.  89. 


144 


RIGHTS   AT  REST  AND    IN   MOTION. 


CHAP.  X. 

Prelimin- 
ary state- 
ments. 


doubt  inseparable  from  the  proposed  method,  but  it  is 
hoped  that  the  amount  of  this  may  be  considerably 
lessened  by  the  general  statements  respecting  both  the 
nature  and  the  movement  of  rights  which  will  be  com- 
prised in  the  present  chapter. 


Rights  at 
rest. 

Orbit. 

Infringe- 
ment. 


I.  A  right  which  is  at  rest  has  to  be  studied  with 
reference  to  its  'orbit'  and  its  'infringement.'  By  its 
'orbit,'  we  mean  the  sum,  or  extent,  of  the  advantages 
which  are  conferred  by  its  enjoyment.  By  its  'infringe- 
ment,' we  mean  an  act,  in  the  strict  sense  of  the  term\ 
which  interferes  with  the  enjoyment  of  those  advantages. 
A  knowledge  of  the  former  necessarily  implies  a  know- 
ledge of  the  latter,  and  vice  versa^  since  the  one  is  always 
precisely  correlative  with  the  other.  It  is  obvious  that 
to  know  the  whole  extent  of  the  advantage  conferred 
by  the  enjoyment  of  a  right  is  the  same  thing  as  to  know 
what  acts  are  infringements  of  it.  Thus  the  right  may 
be  such  as  to  exact  from  the  world  an  abstention  only 
from  any  deliberate  interference  with  it,  or  it  may  be 
such  as  to  exact  an  abstention  even  from  such  an  in- 
fraction of  it  as  may  result  from  want  of  care.  Again, 
the  person  of  inherence  may  be  entitled  absolutely  to 
abstention  on  the  part  of  others  from  certain  acts,  although 
they  may  'cost  him  nothing,  no  not  so  much  as  a  little 
diachylon  V  or  only  to  abstention  from  those  acts  when 
they  occasion  him  actual  loss,  not  only  iniuria  but  also 
damnum^     If    it  be  established  that  a  solicitor  has  an 


'  Supra,  p.  I02. 

^  See  Lord  Holt's  remarks  in  Ashby  v.  White,  Lord  Raymond,  938. 

*  Cf.  the  liability  which  arises  upon  subsidence  of  land,  caused  by  the 
otherwise  innocent  excavations  of  the  owner  of  the  subsoil,  Bonomi  v. 
Backhouse,  9  H.  L.  C.  503;  and  upon  damage  done  by  the  bursting  of 
a  reservoir,  the  storage  of  water  in  which  gives,  of  itself,  no  right  of  action, 
Fletcher  v.  Rylands,  L.  R.  3  H.  L.  330,  or  by  the  escape  from  custody  of 
an  animal  of  known  dangerous  propensities,  May  v.  Burdett,  9  Q.  B.  loi. 
Damage  so  done  is  actionable  without  proof  of  negligence.  The  excava- 
tion is  made,  and  the  dangerous  substance,  or  animal,  is  kept '  at  one's 


ORBIT   AND    INFRINGEMENT.  I45 

absolute  right  that  no  one  shall  falsely  impute  to  him  chap.  x. 
professional  misconduct,  irrespectively  of  any  pecuniary 
loss  resulting,  or  not  resulting,  from  the  charge,  and  that 
a  street  passenger  has  a  right  not  to  be  run  over  by  negU- 
gent  driving,  it  follows  that  slander  of  a  sohcitor,  though 
unaccompanied  by  loss,  and  negligent  driving  causing 
injury  to  a  street  passenger,  are  alike  wrongful  acts. 

On  the  other  hand,  the  orbit  of  a  right  may  be,  and 
very  generally  is,  ascertained  by  an  enumeration  of  the 
acts  which  are  violations  of  it;  as  a  right  of  property  is 
consecrated  by  the  commandment '  Thou  shalt  not  steal.' 

It  is  necessary  to  observe  that  what  might  appear  to  Apparent 
be  an  infringement  of  a  right  often  turns  out  upouj^g^t. 
investigation  not  to  be  one.  This  may  be  the  case, 
because  the  apparent  act  is  no  act  at  all,  or  because  it  is 
not  the  true  cause  of  the  damage  complained  of,  or  because 
the  right  which  seems  to  have  been  infringed  has  been 
waived,  or  because  the  right  has  been  forfeited,  or  is  dis- 
allowed on  grounds  of  public  policy. 

X.  When  the  apparent  act  is  really  the  result  of  cir-  Act 
cumstances  over  which  the  apparent  agent  had  no  control ; 
as,  for  instance,  if  the  horse  which  he  is  driving  is 
frightened  by  the  sudden  noise  of  a  cart  driven  furiously 
along  the  street,  and  becoming  unmanageable  does  injury 
to  persons  and  property,  he  is  not  responsible.  The  result 
here  is  a  mere  accident,  since  a  true  act  must  be  accom- 
panied either  by  intention,  or  at  least  by  negligence  ^ 

2.  No  one  circumstance  in  this  world  can  be  called  with  Cause, 
perfect  accuracy  the  cause  of  any  other.      Even  if  I  fire 
a  pistol  at  a   man   and  kill   him,  many  other  causes  are 
at  work  besides   the   agency  of  my  will  upon  my  finger, 
and  so  upon   the   trigger   of  the   pistol.     There  must  be, 

peril ' :  and  such  seems  to  be  the  rule  of  Scots,  and  of  Roman -Dutch  J^aw, 
E.  and  S.  Africa  Tel.  Co.  v.  Cape  Town  Tramways  Co.  [1902],  A.  C'  381. 
But  see  Cork  v.  Blossom,  162  Mass.  330. 

*  Supra,  pp.  104,  107.   Cf.  Holmes  v.  Mather,  L.  R.  10  Ex.  261, 

HOLLAND  L 


146 


RIGHTS   At   REST  AND    IN    MOTION. 


CHAP.  X. 


Remote- 
ness. 


for  instance,  the  explosive  power  of  the  powder,  the  law 
of  gravitation  permitting  the  passage  of  the  bullet,  the 
manufacture  and  sale  of  the  pistol,  and  so  forth.  In 
many  cases  the  share  of  the  person  whom  we  wish  to 
make  answerable  is  mixed  up  in  a  far  more  complex 
manner  with  the  other  events  and  acts  which  have  led 
to  the  result.  In  a  case  in  which  a  squib  was  thrown  by 
A  at  B,  and  B,  to  get  rid  of  it,  threw  it  at  C,  and  it  was 
thus  passed  on,  till  it  ultimately  hit  and  injured  Z,  it  was 
held  that  A  was  liable.  'He  who  does  the  first  wrong,' 
said  the  Court,  'is  answerable  for  all  the  consequential 
damages.  All  that  was  done  subsequently  to  the  original 
throwing  was  a  continuation  of  the  first  force  and  first 
act,  which  will  continue  till  the  squib  was  spent  by 
bursting,  and  I  think  that  any  innocent  person  removing 
the  danger  from  himself  to  another  is  justifiable  \'  It 
is  conceivable  that  the  decision  in  this  case  might  have 
been  otherwise,  and  it  must  be  remembered  that  the  law 
will  refuse  to  consider  an  act  to  be  the  cause  of  a  result 
which  is  either,  in  the  language  of  English  law,  'too 
remote,'  or  to  which  the  injured  party  has  'contributed' 
by  his  own  negligence. 

As  to  remoteness,  it  was  said  by  Lord  Bacon :  '  It 
were  infinite  for  the  law  to  consider  the  causes  of  causes, 
and  their  impulsions  one  of  another;  therefore  it  con- 
tenteth  itself  with  the  immediate  cause,  and  judgeth  the 
acts  by  that,  without  looking  at  any  further  degree^.' 
The  wrong  and  the  damage  must  be,  it  has  been  said, 
'concatenated  as  cause  and  effect ^'    The  difficulty  is,  of 


*  Scott  V.  Shepherd,  i  Sm.  L.  C.  399;  cf.  the  opinion  of  Labeo:  'Si, 
cum  vi  ventorum  navis  impulsa  esset  in  funes  anchorarum  alterius,  et 
nautae  funes  praecidissent,  si  nuUo  alio  modo  nisi  praecisis  funibus 
explicare  se  potuit,  nullam  actionem  dandam.'  Dig.  ix.  2.  29.  3.  lb. 
49.  I. 

*  Maxims,  Reg.  i. 

'  Gerhard  v.  Bates,  2  Ell.  &  B.  490. 


CONTRIBUTORY    NEGLIGENCE.  147 

course,  to  decide  when  this  can  fairly  be  said  to  be  the  chap.  x. 
case.  Lord  Ellenborough  held  that  where  special  damage 
must  be  shown,  it  must  be  the  legal,  as  well  as  the 
natural,  consequence  of  the  act  complained  of,  and  accord- 
ingly that  A  had  no  action  against  B  for  the  utterance 
of  slanders  which  had  caused  A  to  be  wrongfully  dismissed 
from  his  situation  \  Much  doubt  has  however  been 
thrown  upon  the  correctness  of  this  view^ 

A  person  is  said  to  contribute  to  his  own  injury,  when  Contribu- 
he  so  acts  as  to  become  a  'co-operative  cause'  of  it.  Forgg^^ 
instance,  the  owner  of  cattle  which  have  been  injured  by 
a  railway  train  cannot  recover  from  the  Company  if  they 
have  strayed  on  to  the  line  through  his  own  negligence 
in  not  shutting  gates  ^.  But  the  negligence  of  the  sufferer 
is  not  held  to  be  contributory,  when  the  result  complained 
of  might  have  been  avoided  by  the  exercise  of  ordinary 
care  on  the  part  of  the  wrong-doer*. 

The  contributory  neghgence  of  a  third  party  is  no  Of  third 
excuse  for  the  neghgence  of  the  defendants  To  this^^^' 
rule  two  exceptions  have  been  recognised.  First,  when 
the  cause  of  action  is  derived  from  a  negligent  third 
party,  which  is  the  case  where  a  parent  or  guardian  sues 
for  injury  to  a  child,  caused  by  its  own  carelessness^; 
and  secondly,  where  the  plaintiff  has  'identified  himself 
with  the  negligent  third  party,  as  where  the  plain- 
tiff was  a  passenger  in  a  vehicle  the  driver  of  which 
contributed  by  his  negligence  to  the  injury  caused  by  the 


'  Vicars  v.  Wilcox,  8  East,  3;  of.  Ward  v.  Weeks,  7  Bing.  211. 

'  Knight  V.  Gibbs,  i  Ad.  «fe  E.  43;  Lynch  v.  Knight,  9  H.  L.  C.  577; 
Pollock,  Torts,  Ed.  vii,  p.  237.  The  cases  on  remoteness  of  cause  were 
elaborately  considered  by  Cockbum  C.  J.  in  Clark  v.  Chambers,  L.  R. 
3  Q-  B.  327. 

3  Ellis  V.  London  and  S.  W.  Ry.,  2  H.  &  N.  424. 

*  Radley  v.  L.  &  N.  W.  Ry.  Co.,  i  App.  Ca.  754- 

'  Burrows  v.  March  Gas  Co.,  L.  R.  5  Ex.  67. 

"  Mangau  v.  Atherton,  L.  R.  i  Ex.  239,  but  cf.  Lynch  v.  Nurdin, 
I  Q.  B.  29. 

La 


148  RIGHTS   AT   REST   AND    IN    MOTION. 

CHAP.  X.     driver  of  another  vehicle,  who  was  the  defendant  in  the 

action  S    This    latter    doctrine,   which  is  disapproved    of 

in   Scotland  ^  and    generally  in  the  United   States  ^  has 

at  length,  after  a  currency  of  forty  years,  been  repudiated 

by  the  House  of  Lords  *. 

Appor-  The  Admiralty  practice  in  cases  of  contributory  negli- 

tionment 

ofnegli-        gence  was  to  apportion  the  liabihty  equally  between  the 

gence.  plaintiff    and  defendant    (the   rusticorum   iudicium)  %   and 

this  rule  is  now  extended  by  the  Judicature  Act  of  1873  to 
all  cases  of  collision  between  two  ships®.  In  all  other 
cases,  according  to  the  law  of  England,  a  plea  of  the  con- 
tributory negligence  of  the  plaintiff"  is,  if  supported,  fatal 
to  his  right  of  action  I 

Roman  law  seems  to  have  arrived  at  the  same  result 
in  practice,  though  on  somewhat  different  theoretical 
grounds.  The  question  is  treated  in  the  Digest  not  as 
one  of  causation  but    as    one   of    set-off,   in   which   the 


'  Thoroughgood  v.  Bryan,  8  C.  B.  115.  Cf.  Armstrong  v.  Lane,  and 
Yorks.  Ry.  Co.,  L.  R.  10  Ex.  47- 

*  Hobbs  V.  Glasgow  Ry.,  3  Ct.  of  Session  Cases,  Ser.  4.  215. 
'  Webster  v.  Hudson  Ry.,  19  N.  Y.  Rep.  341. 

*  The  Bemina,  12  Prob.  Div.  58,  confirmed  in  H.  L.,  as  Mills  v.  Arm- 
strong, 13  App.  Ca.  I. 

'  The  doctrine  extends  to  cargo-owners,  whose  remedy  is  against  both 
ships  in  equal  moieties.   The  Milan,  i  Lush.  388. 

*  For  a  review  of  the  cases  on  the  Admiralty  practice,  see  L.  Q.  R.  ii. 
p.  357.  The  principle  of  the  rusticorum  iudicium  has  recently  been  ex- 
tended by  the  Supreme  Court  of  the  U.  S.  to  all  cases  of  maritime  tort. 
The  Max  Morris,  137  U.  S.  Rep.  i.  On  the  different  systems  for  ap- 
portionment of  liability  prevailing  in  different  countries,  see  L.  Q.  R.  xii. 
p.  260,  xiii.  p.  17. 

'  See  an  able  article  by  Mr.  E.  H.  Crosby  in  the  American  Law  Review 
for  1880,  p.  770,  and  the  notes  to  Ashby  v.  White,  i  Sm.  L.  C.  In  Illinois, 
and  some  other  states,  it  seems  that  the  courts  weigh  the  question  of 
'  comparative  negligence,'  allowing  a  plaintiff  whose  negligence  is  '  slight ' 
to  recover  against  a  defendant  whose  negligence  is  'gross.'  It  has  lately 
been  held  that  the  plaintiff  is  bound  not  only  to  prove  the  negligence  of 
the  defendant,  but  also  to  disprove  any  contributory  negligence  of  his 
own;  Davey  v.  L.  &  S.  W.  Ry.,  12  Q.  B.  Div.  70;  WakeHn  v.  L.  and 
S.  W.  Ry.,  12  App.  Ca.  41;  but  see  Dublin,  &c.  Ry.  v.  Slattery,  3  App. 
Cases,  1155. 


EMPLOYERS'   LIABILITY.  I49 

negligence  of  the  plaintiff  balances  that  of  the  defendant '.     chap.  x. 
'Quod  quis   ex  culpa  sua  sentit,  non   intelligitur  sentire,' 
says  Pomponius  ^. 

3.  'Volenti  non  fit  iniuria.'     If  a  right  is  waived,  an  Waiver, 
act   which    would    otherwise    be    an    infringement    of    it 
becomes  permissible  ^    Thus  consent  on  the  part  of  the 
husband  was   a  good  plea  in   bar  of  the  old  action  for 
criminal  conversation.    So  '  leave  and  licence '  is  an  answer 

to  an  action  for  trespass,  and  a  similar  defence  may  be 
pleaded  for  what  might  appear  to  be  a  breach  of  covenant. 
The  waiver  must  of  course  be  given  freely  and  with 
knowledge  of  the  circumstances. 

4.  If  a  right  is  forfeited,  or  suspended,  by  misconduct,  For- 
an   act  which  would    previously    have    been    a  violation 

of  it  ceases  to  be  unlawful  An  assault  may  be  justified 
on  the  ground  that  it  was  committed  upon  a  person  who 
had  forced  his  way  into  one's  house  and  refused  to  leave 
it,  or  an  arrest  by  the  production  of  the  warrant  of 
a  competent  authority. 

5.  A  right  may  also  be  suspended  on  grounds  of  public  Public 
policy.  So  a  trespass  on  land  adjoining  a  highway  may^'^-^' 
be  justified  if  the  highway  is  impassable. 

The  responsibility  for  an  infringement  does  not  always  Responsi- 
attach    exclusively    to    the    visible    wrong-doer.      In    ac-  '''"*y- 
cordance  with  the  maxims  '  respondeat  superior '  and  '  qui 
facit  per  alium  facit  per  se,'  a  person  is  liable  for  those 
acts  of  his  agents  or  servants  which  either  were  expressly 

*  This  is  sometimes  described  as  'Culpa-compensation.'  See  Pemice, 
Zur  Lehre  von  den  Sachbeschadigungen,  p.  58. 

^  Dig.  1.  17.  203.  So  LHpian:  'Si  in  loco  periculoso  sellam  habenti 
tonsori  se  quis  commiserit,  ipse  de  se  queri  debere,'  Dig.  ix.  2.  ii.  pr.; 
and  Paulus:  'Multa  huiusmodi  deprehenduntur  quibus  summovetur 
petitor  si  evitare  periculum  poterit.'  lb.  28;  cf.  his  Sent.  Rec.  i.  15.3. 
The  culpa  of  the  plaintiff  is  immaterial  when  the  defendant  is  in  dolo.  Dig. 
ix.  2.  9.  4. 

'  On  the  difference  between  'voluntas'  and  'scientia,'  see  Smith  v. 
Baker  [1891],  A.  C.  325. 


ISO 


RIGHTS   AT   REST  AND    IN    MOTION. 


Common 
employ- 
ment. 


authorised  by  him,  or  which  were  done  by  them   in  the 
course  of  their  employment  \ 

By  way  of  exception  to  this  principle,  it  was  for  many 
years  settled  English  law  that  'one  fellow  servant  could 
not  recover  for  injuries  sustained  in  their  common  em- 
ployment from  the  negligence  of  a  fellow  servant,  unless 
such  fellow  servant  is  shown  to  be  either  an  unfit  or 
improper  person  to  have  been  employed  for  the  purpose  ^ ' ; 
the  reason  given  being  that  an  imphed  contract  is  entered 
mto  by  servants  to  accept  the  consequences  of  the 
negligence  of  a  properly  selected  fellow  servant,  as  an 
ordinary  risk  of  their  employment.  The  exception  was, 
however,  much  restricted  in  its  operation  by  the  Employers' 
Liabihty  Act,  1880,  and  still  further  by  the  Workmen's 
Compensation  Act,  1897  ^  Under  the  latter  Act,  in  certain 
specified  dangerous  employments,  and  subject  to  certam 
exceptions,  an  employer  is  liable,  irrespectively  of  any 
question  of  negligence,  to  compensate  his  workmen  for 
accidental   injuries.      No  contracting  out  of    the  Act    is 


'  Mr.  Justice  Holmes  brings  forward  a  mass  of  curious  evidence, 
beginning  with  Exodus  xxi.  28,  to  show  that  the  remedy  was  in  early 
times  against  the  immediate  cause  of  damage,  even  inanimate,  the  owner 
of  which  was  therefore  bound  to  surrender  it  ('noxae  deditio'),  though 
in  later  times  he  was  allowed  to  redeem  the  offending  property  by  a 
money  payment.  Common  Law,  pp.  7-35.  Cf.  Fitz.  Abr.  '  Barre,'  290. 
On  the  connected  institution  of  the  'Deodand,'  see  i  Comm.,  300. 
A  steam-engine  which  had  caused  death  was  forfeited  to  the  Crown  by 
way  of  deodand  as  lately  as  1842 :  R.  v.  E.  Counties  Ry.  Co.,  10  M.  &  W. 
58;  but  deodands  were  abolished  by  9  &  10  Vict.  c.  62.  See  Holmes  J. 
in  Harvard  L.  R.  xii.  p.  445,  and  infra,  p.  166. 

*  Feltham  v.  England,  L.  R.  2  Q.  B.  36.  This  view,  first  held  in  the 
case  of  Priestley  v.  Fowler,  3  M.  «&  W.  i  (1837),  is  not  wholly  unknown 
on  the  Continent.  With  Parliamentary  Papers,  1886  [c.  4784],  compare 
an  instructive  article  by  W.  G.  Clay,  in  Journal  of  Comp.  Legisl.  ii.  p.  i, 
especially  pp.  95,  99,  with  reference  to  art.  1384  of  the  Code  Civil.  It  is 
settled  law  in  the  U.  S.  See  Murray  v.  S.  C.  Rail.  Co.,  i  McMullan  (South 
Carol.),  385  (1841),  and  Farwell  v.  Boston  and  Wore.  Rail.  Co.,  4  Metcalf 
(Massachusetts),  49.  Cf.  an  important  art.  in  Michigan  Law  Review,  ii. 
p.  79,  on  '  the  fellow-servant  doctrine  in  the  U.  S.  Supreme  Court.' 

'  43  &  44  Vict.  c.  42;  60  &  61  Vict.  c.  37;  63  &  64  Vict.  c.  37, 


FACTS.  151 

permissible,   unless    with    reference   to    some    scheme    of     chap.  x. 
Insurance  approved  by  the  Registrar  of  Friendly  Societies. 
An  Act  of  1900  applies  the  provisions  of  the  last-mentioned 
Act  to  agricultural  and  cognats  employments  \ 

The  tendency  on  the  Continent  is  to  substitute  systems 
of  State  Insurance  for  any  direct  liabiUty  of  a  master, 
either  for  negligence  or  under  an  implied  contract  of 
indemnity. 

II.  The  origination,  transfer,  and  extinction  of  rights,  Rights  in 
or,  as  the  Germans  would  say,  the  connection  and  dis- 
connection of  '  Rechtsverhaltnisse '  with  their  Subjects  ^ 
are  due  to  Facts,  but  may  be  the  result  of  either  of  the 
two  species  of  Facts,  i.  e.  either  of  an  Event  or  an  Act'. 
A  fact  giving  rise  to  a  right  has  long  been  described  as 
a  '  title ' ;  but  no  such  well-worn  equivalent  can  be  found 
for  a  fact  through  which  a  right  is  transferred,  or  for  one 
by  which  a  right  is  extinguished.  A  new  nomenclature 
was  accordingly  invented  by  Bentham,  which  is  convenient 
for  scientific  use,  although  it  has  not  found  its  way  into 
ordinary  language.  He  describes  this  whole  class  of  facts  Disposi- 
as  '  Dispositive ; '  distinguishing  as  '  Investitive '  those  by  '^^  ^ 
means  of  which  a  right  comes  into  existence,  as  '  Divesti- 
tive' those  through  which  it  terminates,  and  as  'Trans- 
lative' those  through  which  it  passes  from  one  person  to 
another  *. 

I.  An    'investitive   fact'  finds    its    nearest  equivalents investi- 
in    classical    Latin    in    the  terms  'iusta  causa,'    'iustum  '^^" 


'  63  «fe  64  Vict.  c.  22. 

*  Cf.  Savigny,  System,  ii.  p.  374;'  ii.  p.  i;  Windscheid,  Pand.  i. 
p.  170. 

'  Supra,  pp.  89,  loi. 

*  His  further  distinction  of  'Investitive'  facts  into  'coUative'  as 
conferring  rights,  and '  impositive '  as  imposing  duties,  and  of '  Divestitive ' 
facts  into  ' destitutive *  or  'ablative'  as  extinguishing  rights,  and 
'exonerative'  as  extinguishing  duties,  seems  to  be  of  less  value.  Cf. 
Works,  iii.  p.  189. 


152  RIGHTS   AT   REST   AND    IN    MOTION. 

CHAP.  X.  initium,'  and  '  titulus.'  In  some,  but  not  in  all,  cases,  it  is 
possible  to  detect  two  stages  in  the  acquisition  of  a  right, 
a  more  remote  and  a  nearer,  and  it  has  been  proposed  to 
distinguish  them  by  describing  the  'causa  reraota'  as 
'  titulus,'  the  '  causa  proxima '  as  '  modus  adquirendi.' 
'  Cavendum  est  ante  omnia,'  says  Heineccius,  '  ne  con- 
fundamus  titulum  et  modum  adquirendi,  quippe  qui  toto 
coelo  differunt ' ;  and  he  goes  on  to  assert  that  '  dominium ' 
can  never  be  gained  without  the  combination  of  a  '  titulus,' 
giving  a  '  ius  in  personam,'  and  a  '  modus  adquirendi,' 
which  superadds  the  'ius  in  rem.'  These  two  stages  are 
undoubtedly  traceable  in  such  a  transaction  as  a  Roman 
contract  of  sale  followed  by  delivery,  but  they  are  by  no 
means  universally  present  in  the  acquisition  even  of  real 
rights,  and  it  is  now  admitted  that  the  importance  of 
the  distinction  has  been  much  overrated  \ 

A  right  may  be  conferred  either  by  a  direct  act  of  the 
sovereign  power,  or  by  some  fact  which  brings  a  particular 
instance  within  the  operation  of  a  general  law.  In  the 
former  case  the  investitive  fact  would  be  properly  described 
as  a  ' privilegium,'  in  the  latter  case  as  a  'title.'  The 
grant  of  a  monopoly  would  be  a  fact  of  the  former  kind, 
the  death  of  an  ancestor,  bringing  into  operation  the  law 
of  inheritance,  would  be  a  fact  of  the  latter  kind,  and 
would  be  an  instance  of  what  is  described  by  some  writers 
as  '  Qualification,'  i.  e.  the  substitution  by  the  course  of 
events  of  a  definite  individual  instead  of  an  '  incerta 
persona'  as  the  person  entitled  to  a  right ^. 

■     1.-  2.  A  'divestitive  fact'  puts  an  end  to  a  right  altogether; 

"    ■  so  the  right  of  a  tenant  terminates  with  the  expiration 

of  his  lease,  and  the  right  of  a  creditor  is  at  an  end  when 
his  debt  has  been  paid. 


*  Hein.  Recit.  ii.  tit.  2.  339.  'Der  vergebliche  Versuch,  jede  Rechts- 
erwerbung  auf  einen  iustus  titulus  und  s.  g.  modus  adquirendi  zuriick- 
zufiihren,  ist  nun  allegemein  aufgegeben.'    Bocking,  Inst.  p.  44- 

'  Austin,  iii.  pp.  93-98. 


TRANSLATIVE   FACTS.  153 

3.  Rights  are  more  commonly  transferred  than  altogether  chap.  x. 
extinguished,  so  that  a  divestitive  fact  is  very  often  capable  Transla- 
of  being  regarded,  from  another  point  of  view,  as  investi- 
tive also.  A  conveyance  of  land  not  only  terminates 
the  rights  of  the  vendor,  but  also  originates  those  of  the 
purchaser.  A  fact  which  fulfils  this  double  function  is 
called  by  Bentham  '  translative,'  and  the  right  which  results 
from  such  a  fact  is  said  to  be  acquired  '  derivately  \' 

Translative  facts  may  be  regarded  from  several  points 
of  view,  and  may  be  classified  with  reference  to  their 
voluntary  or  involuntary  character,  to  the  persons  between 
whom  the  right  passes,  and  to  the  extent  of  the  right 
passed. 

The  fact  may  be  involuntary,  i.  e.  as  far  as  the  parties  Voluntary 
to  the  right  are  concerned,  it  may  be  a  mere  external  ^"[^^^^ 
event,  such  as  a  bankruptcy,  the  death  of  an  intestate, 
accession,  adjudication,  escheat ;  or  it  may  be  a  voluntary 
act  on  the  part  of  the  person  from  whom  the  right  passes, 
such  as  a  contract  of  sale,  or  a  testament.  In  the  latter 
case  it  is  called  'Alienation^':  which  again  may  be 
gratuitous,  when  the  resulting  acquisition  is  said  to  be 
'  ex  lucrativa  causa,'  or  for  an  equivalent.  The  distinction 
between  involuntary  and  voluntary  investitive  facts  is 
expressed  by  the  English  law-terms  'act  of  law'  and 
'act  of  party.' 

A    translative    fact    may  operate  wholly  '  inter  vivos,'  The  per- 

or  it  may  pass  a  right  from  a  deceased  to  a  living  person,  ^°'^^' 

or  from  a  natural   to  an  artificial  person,  or  from  one 

artificial  person  to  another.      The  artificial  person  may 

in  some  cases  be  the  State  itself. 

The  right  passed  by  the    translative    fact    cannot,  as  The  ex- 
tent. 


*  Puchta,  Inst.  ii.  p.  325,  points  out  that  in  all  derivative  acquisitions 
there  is  a  legal  relation  between  the  auctor  and  the  person  acquiring;  not 
merely  a  loss  by  one  and  gain  to  another,  as  in  usucapio, 

'  On  Alienation,  cf.  infra,  p.  209. 


154 


RIGHTS    AT    REST   AND   IN   MOTION. 


Succes- 
sion. 

Singular. 


Universal. 


a  rule,  be  of  greater  extent  than  the  right  whence  it  is 
derived.  '  Non  debeo  mehoris  conditionis  esse  quam  auctor 
mens  a  quo  ius  in  me  transit*.'  It  may  however  either 
be  of  less  extent,  as  when  a  leasehold  interest,  or  an 
easement,  is  granted  by  an  owner  of  land ;  or  it  may  be 
the  very  right  itself,  in  which  latter  case  the  translative 
fact  is  called  a  '  Succession.' 

When,  as  is  usually  the  case,  the  succession  passes  one 
or  more  separate  rights,  as  the  ownership  of  an  estate, 
or  a  leasehold  interest  in  a  house,  it  is  called  '  singular,' 
and  was  described  in  Roman  law  by  the  phrases  '  succedere 
in  rem,' '  in  rei  dominium.' 

But  there  is  a  more  complex  kind  of  succession,  known 
as  '  universal,'  which  the  Romans  described  by  the  phrases 
'succedere  per  universitatem,'  'in  universum  ius,'  'in 
universa  bona^'  'adquirere  per  universitatem'.'  TMiat 
here  passes  is  what  German  jurists  call  the  '  Gesammtheit 
des  Vermogens,'  the  whole  mass  of  a  man's  property, 
whether  consisting  of  rights  'in  rem'  or  of  rights  'in 
personam,'  or  of  both  combined;  and  with  the  property, 
or  assets, '  bona  activa,'  the  liabilities,  '  bona  passiva,'  pass 
also.  Such  a  'universal  succession'  takes  place  when 
an  executor,  or  administrator,  or  trustee  in  bankruptcy 
succeeds  to  a  whole  group  of  the  rights  and  liabilities 
of  a  testator,  or  an  intestate,  or  a  bankrupt  respectively. 

Many  forms  of  universal  succession  have  now  only 
an  antiquarian  interest.  This  is  the  case,  for  instance, 
with  the  '  addictio  bonorum  libertatium  conservandarum 
causa  V   with    the    Senatusconsultum  Claudianum^  with 


'  Dig.  1.  17.  175.  I.  But  Casaregis  would  substitute  in  mercantile 
transfers  the  principle '  possession  vaut  titre.'  This  theory  seems  to  have 
been  carried  very  far,  in  the  interests  of  commerce,  by  recent  German 
decisions.  Vierteljahresschrift  fiir  Rechtswissenschaft,  &c.,  N.  F.  vii. 
p.  204. 

'  Dig.  xii.  2.  8;  xxi.  3.  3.  i;  xxxix.  2.  24.  i;   xliii.  3.  i.  13. 

'  Gai.  ii.  97.  *  Inst.  iii.  n. 

*  Inst.  ii.  12, 


TESTAMENTARY    SUCCESSION.  155 

the  '  bonorum  venditio.'    Other  forms,  such  as  confiscation     chap.  x. 
to  the  State,  bankruptcy  and  heirship,  can  never  be  out 
of  date. 

The  passage  of  the  rights  of  a  deceased  person  to  his  Intestate 
heirs,  the  'successio    in    universum    ius  quod  defunctus  gjon. 
habuitV  which  is  the   most   important  of   all   universal 
successions,  is   brought   about  either   by   an   involuntary 
fact,  the  man's   death   intestate,   or  by  a   voluntary   act, 
the  making  of  his  will. 

Intestate  is  chronologically  anterior  to  testamentary 
succession.  Recent  investigators,  and  especially  Sir  Henry 
Maine,  have  abundantly  shown  that  there  is  in  early  times 
but  little  trace  of  individual  ownership.  Even  grown-up 
children  had  only  the  most  precarious  interest  during 
their  lives  in  the  property  which  they  were  allowed  to 
handle,  and  on  their  deaths  their  father  took  possession  of 
it  as  a  matter  of  course.  When  the  father  himself  died, 
his  property  passed  of  right  to  his  surviving  children,  or  if 
he  left  no  children,  then  to  certain  precisely  designated 
collateral  members  of  his  family,  or  in  default,  to  that 
wider  family  which  is  known  as  a  'gens'  or  clan.  The 
idea  that  property  really  belongs  to  a  family  group,  and 
that  the  right  of  an  individual  is  merely  to  administer 
his  share  of  it  during  his  hfetime,  may  be  said  still  to 
survive  in  those  provisions  against  the  total  disinheriting 
of  relations  which  modern  systems  have  borrowed  from 
Roman  law  ^,  and  less  obviously  in  the  rights  given  to  next 
of  kin  under  statutes  of  distribution.  The  feudal  doctrine 
as  to  the  succession  of  the  heir-at-law  to  real  property, 
and  of  escheat,  in  default  of  an  heir,  to  the  lord  of  the 
fee,  is  widely  different  in  character.  It  is  as  a  consequence 
of  this  latter  doctrine,  that  no  one  individual  has  been  ♦ 


•  Gaius,  Dig.  1.  i6.  24. 

*  E.  g.  Code  Civil,  liv.  iii.  tit.  2.  chap.  3,  'de  la  Portion  de  Biens 
disponible  et  de  la  Reduction.' 


156  RIGHTS   AT   REST   AND    IN    MOTION. 

CHAP.  X.  recognised  by  English  law  as  succeeding  to  all  the  riglits 
of  an  intestate  who  dies  leaving  both  real  and  personal 
property,  and  that  the  heir  and  the  administrator  have 
divided  between  them  what  under  the  Koman  system 
devolved  wholly  on  the  '  heres.'  A  great  inroad  has  been 
made  upon  this  system  by  the  Land  Transfer  Act,  1897, 
under  which  real  estate,  vested  absolutely  in  a  testator  or 
intestate,  passes  to  his  personal  representatives  \ 
Testamen-  The  principle  that  a  man  may  voluntarily  select  the 
(^ssion.*''  person  on  whom  his  property  is  to  devolve  after  his 
death  ^  is  of  later  origin  than  the  principle  of  intestate 
succession.  Such  a  selection  had  at  first  to  be  ratified 
by  legislative  authority,  in  order  to  oust  the  rights  of  the 
relatives.  The  gradual  growth  of  the  power  of  making 
a  will,  from  the  days  when  it  could  only  be  made  in  the 
'  comitia  calata,'  or  in  the  face  of  the  people  drawn  up  in 
battle  array,  '  in  procinctu,'  through  the  twelve  tables, 
and  the  praetorian  relaxations,  down  to  the  wide  liberty 
enjoyed  under  the  later  Empire,  is  one  of  the  most  in- 
teresting topics  of  the  history  of  Roman  law.  The 
points  to  which  attention  must  be  directed  in  studying 
the  subject  of  testamentary  disposition  in  its  fully  de- 
veloped form,  and  with  reference  to  each  of  which  very 
various  provisions  are  contained  in  actual  systems  of 
law,  are  the  following: 

(i)  The  capacity  of    the    testator,  as  to  age,  freedom 
from  'patria  potestas,'  'coverture,'  or  the  like. 


*  60  &  61  Vict.  c.  65 , '  An  Act  to  establish  a  Real  Representative,  and  to 
amend  the  Land  Transfer  Act,  1875.' 

^  '  Le  testament  est  un  acte  par  lequel  le  testate ur  dispose,  pour  le  temps 
oil  il  n'existera  plus,  de  tout  ou  partie  de  ses  biens.'  Code  Civil,  art.  895. 
'  Neque  enim  aliud  videtur  solatium  mortis  quam  voluntas  ultra  mortem.' 
Quint.  Declam.  308.  A  curious  a  -priori  justification  of  Wills  is  given  by 
Leibnitz :  '  Testamenta  mero  iure  nullius  essent  momenti,  nisi  anima  esset 
immortalis.  Sed  quia  mortui  revera  adhuc  vivunt,  ideo  manent  domini 
rerum,  quod  vero  heredes  reliquerant,  concipiendi  sunt  procuratores  in 
rem  suam.'    Nova  Methodus  lurisprudentiae,  P.  II.  §  20. 


'  LEGACIES.  157 

(2)  The  effect,  if  any,  to  be  given  to  proof  that  the 
testator  acted  under  mistake  or  undue  influence*. 

(3)  The  formalities  necessary  for  the  execution  of  a 
will,  such  as  signing,  sealing,  attestation,  or  enrolment  in 
a  public  office;  and  the  special  cases  in  which  fewer  or 
more  formalities  than  ordinary  are  insisted  upon^ 

(4)  The  contents  of  the  will.  Whether  any  relatives 
must  be  expressly,  or  may  be  only  tacitly,  disinherited; 
whether  the  heir  must  be  instituted  before  other  matters 
are  mentioned;  and  so  forth. 

(5)  The  capacity  of  the  heir,  or  other  person  who  is  to 
take  beneficially  under  the  will.  The  incapacities,  under 
various  systems,  of  '  incertae  personae,'  corporations,  priests, 
witnesses,  charities  and  churches. 

(6)  The  modes  in  which  a  will,  when  once  well  made, 
may  subsequently  become  invalid;  as  in  Roman  law  by 
the  agnation  of  a  new  'suus  heres,'  and  in  English  law 
by  marriage ;  or  in  which  it  may  be  set  aside,  e.  g.  by 
the  'querela  inofficiosi.' 

(7)  Whether  the  inheritance  devolves  immediately 
through  the  operation  of  the  will,  or  whether  any  act  is 
necessary  on  the  part  of  the  heir  or  executor,  such  as  the 
'  cretio '  or  '  aditio '  of  heirs  other  than  the  '  necessarii ' 
in  Roman  Law^  or  the  procuring  of  probate  from  a 
judicial  authority,  which  is  demanded  from  an  English 
executor  *. 

(8)  Whether   the  heir  can  refuse  to  accept,  and   how 


'  On  the  differences  between  Roman  and  modern  English  law  on  this 
point,  see  Lord  Hardwicke's  judgment  in  Milner  v.  Milner,  1  Vesey,  106, 
and  Story,  Equity  Jurispr.  §  179. 

'  The  formalities  will,  for  instance,  be  more  elaborate  in  the  case  of 
a  blind  man,  Cod.  vi.  22.  8;  less  so  in  the  case  of  a  soldier  on  active 
service,  7  W.  IV.  and  i  Vict.  c.  26.  §  11. 

^  Before  which  the  hereditas  was  described  as '  iacens/  and  was  treated 
as  a  juristic  person. 

*  He  may  also  render  himself  liable  by  intermeddling  with  the  estate, 
when  he  is  said  to  become  '  executor  de  son  tort,' 


158 


RIGHTS    AT    REST   AND    IN    MOTION. 


CHAP.  X.     far  he  can  claim  to  be  relieved  from   liabilities  in  excess 
of  assets. 

It  may  be  well  to  observe  that  although  an  English 
executor  did  not  take  the  whole  property  of  a  person 
who  dies  leaving  real  as  well  as  personal  property,  yet  he 
might  well  have  been  regarded  as  a  universal  successor, 
so  far  as  relates  to  the  personal  property  and  the  claims 
upon  it\ 


Legacies. 


Dona- 
tiones 
mortis 
caxisa. 


One  form  of  singular  succession  is  so  closely  connected 
with  universal  succession  under  a  testament  as  to  be  unin- 
teUigible  apart  from  it  ^.  A  Legacy, '  donatio  quaedam 
a  defuncto  relictaV  is  a  deduction  from  an  inheritance 
for  the  benefit  of  some  one.  It  is  the  creation  of  a  claim 
upon  the  universal  successor  \  and  a  distinction  is  drawn 
between  the  'vesting'  of  the  legacy,  'dies  cedit,'  and  its 
becoming  payable, '  dies  venit.'  It  may  be  revoked  by 
the  testator,  or  it  may  'lapse.'  It  will  be  void  if  incon- 
sistent with  any  rule  of  law  as  to  the  amount  of  legacies, 
or  as  to  the  proportion  which  they  may  bear  to  the 
property  which  is  to  remain  with  the  heir,  or  as  to  the 
persons  who  may  receive  them.  A  Legacy  must  .be  dis- 
tinguished  from  a  '  donatio  mortis  causa  ^ '  which,  though 


*  As  to  his  position  with  reference  to  real  property,  under  the  Land 
Transfer  Act,  1897,  v.  supra,  p.  156  n.  i.  The  early  history  of  the  Enghsh 
executor  is  discussed  with  great  learning  by  Mr.  Justice  Holmes  in  The 
Common  Law,  p.  344,  and  in  the  Harvard  L.  R.  xii.  p.  446,  where  he 
traces  the  executor  from  the  '  sale-man '  of  the  Lex  Salica. 

*  'Quae  pars  iuris  extra  propositam  quidem  materiam  videtur:  nam 
loquimur  de  his  iuris  figuris  quibus  per  universitatem  res  nobis  adqui- 
runtur:  sed  cum  omnimodo  de  testamentis  .  .  .  locuti  sumus,  non  sine 
causa  sequenti  loco  poterat  haec  iuris  materia  tractari.'   Gai.  ii.  191. 

^  Inst.  ii.  20.  I. 

*  Although,  according  toNeratius,  'eaquae  legantur  recta  via  ab  eo 
qui  legavit  ad  eum  cui  legata  sunt  transeunt.'   Dig.  xlvii.  2.  64. 

*  '  Cum  magis  se  quis  velit  habere  quam  eum  cui  donatur,  magisque 
eum  cui  donat  quam  heredem  suum.'  Inst.  ii.  20.  i.  On  the  evils  of  the 
wide  applicability  to  securities  of  'donatio  mortis  causa'  at  the  present 
day,  see  Law  Q.  R.  ii.  444. 


LEGACIES.  159 

it  takes  effect  on  the  death  of  the  donor,  does  not  do  so 
by  way  of  deduction  from  the  inheritance. 

Having  now  considered  the  general  characteristics  of 
law  and  of  rights,  we  are  in  a  position  to  enter  upon 
a  more  detailed  examination  of  our  subject,  under  the 
three  great  heads  of  '  private,'  '  public,'  and  '  international ' 
law. 


CHAPTER  XI. 


PRIVATE    LAW  :    RIGHTS    '  IN    REM/ 


Substan- 
tive, 

adjective, 
law. 


Normal, 

abnormal, 

rights. 


Antece- 
dent, 
remedial, 
rights. 


The  great  department  of  law,  upon  a  detailed  examin- 
ation of  which  we  are  about  to  enter,  may  be  most 
conveniently  studied  if  we  distinguish  at  the  outset  the 
main  topics  which  are  contained  in  it.  These  are  to  be 
ascertained  by  a  successive  application  of  the  principles 
of  division  which  were  explained  in  a  preceding  chapter, 
in  the  order  which  seems  best  suited  to  the  subject. 

Private  law,  as  thus  treated,  is  either  '  substantive '  or 
'adjective,'  that  is  to  say,  it  either  defines  the  rights  of 
individuals,  or  indicates  the  procedure  by  which  they  are 
to  be  enforced. 

The  rights  dealt  with  by  substantive  law  may  be  either 
normal'  or  'abnormal,'  as  the  persons  with  whom  they 
are  connected  are  of  the  ordinary  type,  or  deviate  from  it. 

Both  classes  of  rights  are  either '  antecedent '  or '  remedial.' 
A  right  of  the  former  kind,  it  will  be  remembered,  is  one 
which  exists  irrespectively  of  any  wrong  having  been 
committed.  It  is  an  exceptional  advantage  granted  to  the 
person  who  is  clothed  with  it.  The  devisee  of  a  house 
in  Middlesex,  or  the  merchant  who  has  bought  a  cargo 


THE   ORDER  OF   STUDY. 


I6l 


of  rice,  is,  by  virtue  of  being  thus  devisee  or  purchaser,  in  chap.  xi. 
enjoyment  of  powers  which  are  not  possessed  by  the  rest 
of  the  population.  A  right  of  the  latter  kind  is  one  which 
is  given  by  way  of  compensation  when  an  'antecedent' 
right  has  been  violated.  Antecedent  rights  are  either  '  in  Rights 
rem '  or  '  in  personam  ' ;  that  is  to  say,  they  are  available  ^^sonam. 
either  against  the  whole  world  or  only  against  a  definite 
individual.  Thus  the  proprietary  right  of  the  owner  of 
a  house  is  good  against  all  the  world,  while  the  right 
of  a  landlord  to  his  rent  is  good  only  against  his  tenant. 
Remedial  rights  are  most  usually  available  only  'in 
personam,'  though  proceedings  against  a  ship  in  the  Court 
of  Admiralty,  or  to  obtain  a  divorce,  are  undoubtedly  'in 
rem,'  as  was  the  '  actio  quod  metus  causa '  in  Roman 
law  ^.  Ulpian  pointed  out  that  all  interdicts,  '  licet  in  rem 
videantur  concepta,  vi  tamen  ipsa  personalia,  sunt^'  Our 
distribution  of  the  subject  may  be  more  shortly  expressed 
as  follows  : 


Private 
law  is 
either 


Substantive, 
defining 
rights, 
which  are 


Normal 


Abnormal. 


Antecedent  Un  rem. 

^  in  personam. 

.Remedial. 


Adjective,  providing  for  the  protection  of  rights. 


"We  shall  begin  with  the  consideration  of  the  substantive 
law  of  the  various  species  of  normal  rights.  We  shall  then 
treat  of  the  law  of  abnormal  rights,  and  conclude  with 
the  topic  of  adjective  law  or  Procedure. 


Normal  rights  may  be,  as  has  been  already  explained.  Order  of 
either  Antecedent  or  Remedial,  and  rights  of  the  former 

*  '  Cum  autem  haec  actio  in  rem  sit  scripta,  nee  personam  vim  facientis 
coerceat,  sed  adversus  omnes  restitui  velit  quod  metus  causa  factum  est.' 
Dig.  iv.  2.  9.  8. 

^  Dig.  xliii.  I.  I. 

HOLLAND  M 


1 62 


PRIVATE    LAW:    RIGHTS   'IN    REM. 


CHAP.  XI. 


Rights  in 
rem  to  be 
first  ex- 
amined. 


kind  may  be  either  '  in  rem '  or  '  in  personam.'  The  study 
of  Private  law  will  naturally  commence  with  an  examina- 
tion of  normal  antecedent  rights  '  in  rem,'  i.  e.  of  rights 
which,  irrespectively  of  any  wrong  having  been  committed, 
are  available  for  the  benefit  of  the  person  of  inherence 
against  a  person  of  incidence  so  unlimited  as  to  comprise 
the  whole  world  \  Rights  of  this  kind  are  both  numerous 
and  important,  and  must  be  examined  in  due  order. 

A  distinction  is  very  generally  drawn  by  German  writers 
between  what  they  call '  Urrechte '  and '  erworbene  Rechte  ^.' 
Rights  of  the  former  kind,  which  are  also  said  to  be 
'inborn,'  'fundamental,'  'inalienable,'  'natural,'  'immediate,' 
'  universal,' '  essential,' '  unconditional,'  or '  absolute,'  are  such 
as  every  human  being  possesses  independently  of  any  act 
of  his  own ;  while  rights  of  the  latter  kind,  described 
also  as  '  derivative,'  '  mediate,'  '  alienable,'  '  accidental,'  or 
'hypothetical,'  are  the  result  of  some  free  act.  The  line 
between  the  two  classes  of  rights  is  however  so  variously 
drawn,  and  must  always  be  drawn  subject  to  so  many 
qualifications  and  reservations,  that  the  distinction  is  of 
little  value.  We  have  called  attention  to  it  only  as  illus- 
trating that  graduated  intimacy  of  relation  between  the 
right  and  its  subject  which  we  shall  take  as  our  guide 
in  determining  the  order  of  the  investigation  upon  which 
we  are  about  to  enter. 

We  shall  begin  with  the  right  which  is  most  closely 
connected  with  the  personality  of  the  individual  entitled 
to  it,  and  shall  proceed  to  consider,  one  after  another, 
those  rights  which  are  progressively  less  connected  with 


*  The  new  Civil  Code  for  Germany,  by  an  inconvenient  inversion  of 
the  order  of  treatment  hitherto  accustomed,  deals  with  '  Sachenrecht ' 
after  the  '  Recht  der  Schnldverhaltnisse.'  This  order  is  followed  in  the 
Digest  of  English  Civil  Law,  edited  by  Edward  Jenks,  of  which  Book  I 
appeared  in  1905;  as  in  the  German  edition  of  the  same  work  (Das  biirger- 
liche  Recht  Englands)  with  a  commentary  by  Dr.  Schirrmeister. 

'  ' Officia  et  iura  connata  .  .  .  acquisita.'  Wolfius,Ius  Naturae,  Pars  i. 
c.  i;  Roder,  Naturrecht,  i.  p.  174;  but  see  Savigny,  System,  i.  p.  335. 


PERSONAL   SAFETY.  163 

his  proper  personality,   and  are  more  connected  with  the    chap.  xi. 
control  which  he  is  allowed  to  exercise  over  the  actions 
of  others,  and  with  the  advantages  which  he  is  allowed 
to  derive  from  the  world  in  which  he  lives  \ 

Taken  in  this  order,  the  rights  of  the  class  now  under  Classifica- 
consideration  may  be  ranked  as  follows :  ante^ 

dent 

I.  To  personal  safety  and  freedom.  J!f!?il 

II.  To  the   society   and    control  of   one's  family  and 
dependents. 

III.  To  reputation. 

IV.  To  advantages  open  to  the  community  generally; 

such  as  the  free  exercise  of  one's  calling. 
V.  To  possession  and  ownership. 
VI.  To  immunity  from  damage  by  fraud. 

In  each  case  we  shall  have  to  consider  not  only  the 
nature  of  the  right  in  question,  but  also  the  character 
of  the  act  by  which  it  is  violated,  and  the  modes  of  its 
origination,  transfer  and  extinction.  Our  illustrations 
will  here,  as  elsewhere,  be  drawn  chiefly  from  the  law 
of  England. 

I.  Rights  to  personal  safety  and  freedom  are  the  most  Personal 
widely  enjoyed  of  any.  They  are  possessed  by  every  ^  ^  ^' 
one  who  has  not  waived  or  forfeited  them.  They  are 
acquired  at  the  moment  of  birth,  and  are  therefore  said 
to  be  '  innate,'  though  they  are  limited,  during  the  earlier 
years  of  life,  by  the  right  of  parents  and  guardians  to 
chastise  and  keep  in  their  custody  persons  of  tender  age. 
Similar  rights  of  custody,  and  even  of  chastisement,  have 
been  at  various  periods  recognised  also  with  reference  to 


*  In  his  opinion  in  Allen  v.  Flood  [1898]  A.  C.  i,  Cave  J.  suggests  a  di- 
vision of  rights  into  those  relating  respectively  to  Mind,  Body,  and  E^state. 
On  the  essential  difference  between  the  right  to  personal  safety  and  the 
right  to  property,  see  Brunsden  v.  Humphrey,  14  Q.  B.  D.  141.  Cf. 
'Dominus  membrorum  suorum  nemo  videtur.'   Dig.  ix.  2.  13.  pr. 

M2 


l64  PRIVATE   LAW:    RIGHTS    'IN    REM.' 

CHAP.  XI.  women.  These  rights  are  of  course,  from  their  nature, 
incapable  of  transfer.  They  may  be  partially  waived. 
A  person  who  engages  in  a  lawful  contest  of  strength 
waives,  by  so  doing,  as  against  his  antagonist,  his  right 
not  to  be  assaulted  and  battered  \  and  any  complaint  made 
by  him  in  such  a  case  would  be  well  answered  by  the 
defence  of  'volenti  non  fit  iniuria,'  or  'leave  and  licence.' 
So  a  sailor  who  enters  on  board  ship  waives  for  the  voyage 
his  right  to  direct  his  own  movements.  An  unlimited 
waiver  of  rights  of  this  kind,  such  as  a  self-sale  into 
slavery,  or  a  self-dedication  to  monkish  seclusion,  though 
recognised  in  early  systems  of  law,  is  discountenanced  by 
modern  civilisation  ^  They  may  be  temporarily  forfeited. 
In  other  words  complaints  founded  upon  a  violation  of 
them  may  be  met  by  '&  plea  of  'justification  ' ;  as  in  English 
law  a  complaint  of  assault  is  well  answered  by  a  plea 
of  so?i  assault  demes7ie,  provided  always  that  the  violence 
complained  of  is  not  out  of  all  proportion  to  the  violence 
first  used  by  the  complainant.  They  terminate  with  death. 
They  are,  in  many  cases,  violated  by  acts  exhibiting  only 
that  degree  of  will  which  is  called  negligence. 

In  enumerating  the  rights  of  this  kind  which  are  recog- 
nised in  advanced  states  of  society,  it  will  be  convenient  to 
begin  with  those  which  have  the  widest  extent,  i.  e.  where 
the  injury  is  an  act  of  the  slightest  kind,  and  to  proceed 
'  in  order  to  rights  more  and  more  restricted  in  scope, 
i.  e.  where  there  is  no  injury  unless  the  act  is  of  a  dis- 
tinctly violent  character,  or  is  accompanied  by  actual 
damage. 
Menace.  ^-  A  man    has    a    right  not    to  be  even    menaced  by 

gestures,  as  by  the  shaking  of    a  fist,    the  brandishing 
of  a  stick,  or  the  presenting  of  a  pistoL    Such  acts  may 


•  Similarly  by  submission  to  a  surgical  operation.  See  Pollock,  Torts, 
ed.  vii.  p.  156. 

^  For  limitations  on  the  rule  '  liberos  privatis  pactis  non  posse  servos 
fieri,'  see  Dig.  xl.  13.  3,  Inst.  i.  3.  4. 


PERSONAL   SAFETY.  165 

however  be  deprived  of  any  wrongful  character,  if  the  chap,  xi. 
parties  be  so  distant  that  no  contact  is  possible  \  or  if 
words  are  used  showing  that  no  harm  is  intended,  as 
where  a  man  laid  his  hand  on  his  sword  in  a  threatening 
manner,  but  said, '  If  it  were  not  Assize  time  I  would  not 
take  such  language  from  you^.' 

2.  A  man  has   a  right  not  to  be  touched,  pushed,  or  Assault, 
struck    in  a  rude  or  hostile  manner,  thus   sustaining  a 
'battery'  in  English  law.    This   right   is   not   interfered 

with  by  one  who  is  pushing  his  way  gently  in  a  crowd, 
or  who  touches  his  neighbour  to  attract  his  attention,  or 
gives  him  a  jocular  and  friendly  blow. 

3.  A  man  has  a  right  not  to  be  wounded  or  disabled,  Wound- 
whether  by  deliberate  assault,  or  by  negligence  \  such  as'"^' 
that  of  a   reckless  cab-driver,  or  of  a  railway  company, 
which  sends  a  train  over  an  inadequately  protected  level 
crossing.  , 

4.  A  man  has  a  right  to  go  where  he  pleases,  so  long  imprison- 
as  he  does  not  interfere  with   the  rights  of  others,  and™*^" 
any  one  who  prevents   him  from   so  doing,  whether  by 
constraint  actually  applied,  or  by  such  show  of  authority 

or  force  as  has  an  effect  on  the  will  equivalent  to  actual 
constraint,  is  said  in  English  law  to  be  guilty  of  'false 
imprisonment.' 

An  act  which  appears  to  infringe  a  right  of  one  of  the 
three  last  mentioned  kinds  often  does  not  really  do  so.  It 
may  be  justified  on  the  ground  of  self-defence,  of  defence 
of  a  friend  or  of  property,  of  preservation  of  the  peace, 
or  of  the  execution  of  legal  process  \  The  right  is  in 
fact  to  be  taken  subject  to  qualification  on  various 
grounds. 

»  Cobbett  V.  Grey,  4  Ex.  744. 

^  Tuberville  v.  Savage,  1  Mod.  3. 

'  Supra,  p.  107. 

*  '  Is  qui  iure  publico  utitur  non  videtur  iniuriae  faciendae  causa  hoc 
facere,  iuris  enim  executio  nemini  facit  iriiuriam.'  Dig.  xlvii.  10.  13. 
Cf.  Williams  v.  Jones,  Hardw.  301. 


i66 


PRIVATE    LAW:    RIGHTS   'IN    REM.' 


CHAP.  XI. 


Dangerous 
things. 


Dangerous 
places. 


The  heads  of  right  hitherto  mentioned  may  be  violated 
without  causing  actual  damage.  This  is  not  the  case 
with  those  which  we  are  about  to  describe. 

5.  A  man  has  a  right  not  to  receive  injury  from  any 
dangerous  substance  or  animal  kept  by  another.  Any  one 
who  stores  up  a  great  bulk  of  water  in  a  reservoir,  or 
keeps  a  caravan  of  beasts  ferae  naturae^  is  said,  by  English 
law,  to  do  so  'at  his  peril,'  and  will  be  liable,  should 
damage  be  done  by  the  bursting  of  the  reservoir,  or  the 
escape  of  a  tiger,  although  he  may  have  taken  the  greatest 
possible  care  to  prevent  the  mischief  \  The  same  liability 
would  attach  to  the  keeping  of  animals  mansuetae  naturae^ 
if  known  to  be  vicious  ^ 

6.  A  man  has  a  right  that  his  personal  safety  shall 
not  be  infringed  by  the  negligent  exercise  on  the  part  of 
others  of  their  own  rights,  or  rather  of  what  might  appear 
to  be  their  own  rights;  as  when  a  person  allows  his 
house  to  be  in  such  bad  repair  that  it  falls  on  a  passer-by, 
or  allows  the  existence  of  latent  dangerous  places  in  his 
house  or  land,  whereby  damage  is  sustained  by  persons 
having  lawful  business  there,  or  exercises  a  statutory 
power  without  due  care. 

Not  dissimilar  is  the  narrowly  limited  right  of  a  man 
not  to  be  damnified  through  breach  of  a  contract  to  which 


'  Fletcher  v.  Rylands,  L.  R.  3  H.  L.  330;  May  v.  Burdett,  9  Q.  B.  10 1. 
Cf.  supra,  p.  144  n. 

*  The  need  for  proving  the  scienter,  when  damage  is  done  by  dogs 
to  cattle  or  sheep,  has  been  dispensed  with  by  28  &  29  Vict.  c.  60.  The 
distinction  drawn  by  English  law  between  animals  Jerae  and  mansuetae 
naturae,  and  the  similar  distinction  drawn  (for  a  different  purpose)  by 
Roman  law  between  feritas  genitalis  and  that  which  is  contra  naturam, 
Inst.  iv.  9,  finds  no  place  in  continental  systems.  See  the  Code  Civil, 
art.  1385,  and  the  German  Civil  Code,  833.  The  American  Courts  do 
not  accept  the  view  that  wild  animals  are  kept  'at  one's  peril.'  See 
an  article  by  E.  O.  S.  in  the  Journal  of  Comparative  Legislation,  N.  S. 
No.  i.  p.  54,  citing  Scribner  v.  Kelley,  38  Barbour  N.  Y.  14.  Cf.  supra, 
p.  144. 


PERSONAL   SAFETY.  167 

he  is  not  a  party,  as  by  the  sale  of  an  imperfect  article  by    chap.  xi. 
which  he  is  eventually  injured  \ 

It  might  perhaps  be  supposed  that  since  a  man  has  Not  to  be 
a  right  not  to  sustain  personal  injury,  he  has  a  fortiori 
a  right  not  to  be  killed.  This  is  however  hardly  the 
case,  since  no  'antecedent'  right  can  be  said  to  exist, 
unless  its  infringement  gives  rise  to  a  'remedial'  right; 
but  the  right,  if  any,  to  redress  for  the  infringement 
of  the  right  in  question  dies  with  the  injured  man  at  the 
very  moment  when  it  vests  in  him^ 

It  would  seem  that  a  man  has  no  right  of  immunity 
from  needless  mental  suffering',  unless,  perhaps,  from  a 
'nervous  shock'  causing  bodily  illness \ 


•  See  Longmeid  v.  Holliday,  6  Ex.  761 ;  Thomas  v.  Winchester,  6  N.  Y. 
397;   Greorge  v.  Skivington,  L.  R.  5  Ex.  i. 

^  In  this,  as  in  most  other  cases  of  dehct,  actio  personalis  moritur  cum 
persona,  i.  e.  the  remedy  ceases  to  be  enforceable  upon  the  death  of  either 
the  party  injured  or  the  wrong-doer.  Lord  Campbell's  Act,  9  &  10  Vict, 
c.  93,  does  not  keep  alive  the  right  for  the  benefit  of  executors,  but 
creates  a  new  right,  on  the  analogy  of  what  was  already  common  law 
in  Scotland,  for  the  benefit  of  the  '  wife,  husband,  parent  and  child,'  and 
no  other  person,  to  compensation  for  the  shortened  life  and  labours  of 
the  deceased.  It  is,  however,  held  that  if  the  deceased  has  accepted 
compensation  for  his  injuries,  his  representatives  have  no  further  right 
of  action.    Read  v.  Gt.  E.  Ry.  Co.,  L.  R.  3  Q.  B.  555. 

'  So  held  in  the  Supreme  Court  of  Maine  (1880),  in  Wyman  v.  Leavitt, 
36  Am.  Rep.,  303;  where  see  the  learned  note,  citing  dicta  in  Lynch 
V.  Knight,  9  H.  L.  598.  (Ridiculously  enough,  damages  were  awarded 
for  the  disappointment  of  a  bride,  who  did  not  receive  her  trousseau  in 
time,  in  Lewis  v.  Holmes,  109  La.  1030.)  Cf.  Victorian  Railways  Com- 
missioners V.  Coultas  (1888),  3  App.  Ca.  222;  Mitchell  v.  R.  R.  Co.,  151 
N.  Y.  107;  Ferguson  v.  W.  Union  Tel.  Co.,  60  N.  E.  416. 

*  This  distinction  has  been  drawn  in  certain  later  cases  in  Texas,  Am. 
Law  Review,  1895,  P-  209;  and  where  a  wife  had  become  ill  from  a  shock 
to  her  nervous  system,  caused  by  a  statement  falsely  and  wantonly  made 
to  her  that  her  husband  had  met  with  a  serious  accident,  the  informant 
was  held  by  Wright  J.  to  be  liable  in  damages  for  having  '  wilfully  done 
an  act  calculated  to  cause  physical  harm  to  the  plaintiff:  that  is  to  say, 
to  infringe  her  right  to  personal  safety.'  Wilkinson  v.  Downton  [1897] 
2  Q.  B.  57.  So  in  Dulieu  v.  White  [1901]  2  K.  B.  669,  where  shock  had 
caused  premature  confinement  with  a  child  bom  an  idiot. 


i68 


PRIVATE   LAW:     RIGHTS  'IN    REM.' 


CHAP.  XI. 

Family 
Rights. 


Marital. 


Marriage. 


II.  Rights  to  the  society  and  control  of  one's  family. 
These  family-rights  'in  rem '  must  be  carefully  distinguished 
from  those  rights  'in  personam'  which  a  member  of  a 
family  may  have  against  its  other  members,  and  with 
wliich  we  have  at  present  no  concern.  They  all  result, 
directly  or  indirectly,  from  the  institution  of  marriage, 
which,  as  Bentham  well  said,  '  has  drawn  woman  from  the 
severest  and  most  humiliating  servitude,  has  distributed 
the  mass  of  the  community  into  distinct  families,  has 
created  a  domestic  magistracy,  has  formed  citizens,  has 
extended  the  views  of  men  to  the  future  through  affection 
for  the  rising  generation,  has  multiplied  social  sympathies  \' 
They  may  be  distinguished  as  'marital,'  'parental,'  'tute- 
lary,' and  '  dominical.' 

I.  The  marital  right  of  a  husband,  as  against  the  world, 
is  that  no  other  man  shall,  by  force  or  persuasion,  deprive 
him  of  his  wife's  society  ^  still  less  be  criminally  intimate 
with  her.  An  analogous  right  might  of  course  be  con- 
ceivably recognised  as  vested  in  the  wife,  and  has  been 
so  recognised  in  recent  American  cases  ^ 

The  right  is  acquired  by  Marriage,  the  nature  of  which 
has  varied  with  varying  civilisation.  In  primitive  races 
it  seems  to  have  consisted  in  the  forcible  capture  of 
the  woman  by  the  man.     Later   the  capture  becomes  a 


*  Bentham,  Principes  du  C!ode  Civil,  par  Dumont,  iii.  c.  5. 

^  Cf.  the  interdict  'de  uxore  exhibenda  ac  ducenda,'  which  could  be 
obtained  even  by  a  filiusfamilias  against  his  father.    Dig.  xliii.  30.  2. 

'  See  Westlake  v.  Westlake,  34  Ohio  St.  R.  621;  Kneesy  v.  Exner, 
Brooklyn  Superior  Court,  N.  Y.;  Mehrhoff  v.  Mehrhoff,  U.  S.  Circuit 
Court,  26  Federal  Reporter,  13  (with  a  reference  to  which  the  author 
was  kindly  furnished  by  Mr.  Roger  Foster,  of  New  York) ;  Foot  v.  Card, 
58  Conn.;  and  an  article  on  'The  Husband-seducer,'  in  26  Am.  Law 
Review  (1892).  The  proposed  Civil  Code  for  the  State  of  New  York 
expressly  forbids,  Pt.  ii.  §  32,  'the  abduction  of  a  husband  from  his  wife, 
or  of  a  parent  from  his  child.'  (Professor  F.  M.  Burdick  of  Columbia 
University,  kindly  informs  me  that  this  Code  has  been  adopted  in 
California,  Montana,  and  North  and  South  Dakota.)  Cf.  Lords  Campbell 
and  Brougham,  in  Lynch  i*.  Knight,  9  H.  L.  577. 


FAMILY.  169 

symbolical  ceremony,  following  on  a  voluntary  sale  or  chap,  xl 
gift  of  the  woman  by  her  relatives  to  the  man.  The  still 
more  modern  form  of  marriage,  possible  only  when  the 
individuality  of  the  woman  has  received  recognition,  is 
that  of  a  mutual  and  voluntary  conveyance,  or  dedication, 
of  the  one  to  the  other  \ 

The  contract  of  marriage,  giving  rise,  as  it  does,  to  a  status^ 
must  obviously  be  governed  by  rules  varying  somewhat 
from  those  governing  contracts  generally.  It  is  indeed 
voidable,  i.  e.  the  marriage  may  be  declared  to  be  a  nulUty, 
for  any  reasons  which  negative  a  true  consent,  such  as  are 
lunacy  and  duress  ^.  As  to  mistake,  according  to  the  canon 
law:  'non  omnis  error  consensum  excludit,  sed  error  alius 
est  personae,  alius  fortunae,  aUus  conditionis,  alius  quali- 
tatis '.'  It  is  admitted  on  all  hands  that  mistake  as  to  the 
person  whom  one  mtends  to  marry  is  fatal  to  the  vaUdity 
of  the  contract*.  It  is  equally  admitted  that  mistake  as 
to  social  or  pecuniary  position  has  no  effect  upon  the  con- 
tract ^  Mistake  as  to  condition,  i.  e.  belief  that  a  person  is 
free  who  is  really  a  slave,  could  not  now  occur.  Doubt  can 
therefore  only  arise  with  reference  to  what  Gratian  calls 
'error  qualitatis,'  as  to  which  he  lays  down,  apparently 
only  on  his  own  authority :  '  qui  ducit  in  uxorem  meretricem 
vel  corruptam,  quam  putat  esse  castam  vel  virginem,  non 
potest  cam  dimittere  et  aliam  ducere.'  This  view  has 
been  by  no  means  generally  accepted,  at  any  rate  when 


*  The  discussion  of  the  question  how  far  marriage  is  something  more 
than  a  contract  led  to  the  theory  of  Gratian  that  sponsalia  are  only  an 
initial  marriage,  needing  to  be  perfected  by  physical  consummation;  to 
Peter  Lombard's  distinction  hetweenverbade  futuroandverba  de  praesenti ; 
and  to  the  requirement  by  Vacariusof  a  mutual/ra<fi7to,suggesteddoubtless 
by  the  in  domum  deductio  of  the  Civil  Law.  See  F.  W.  Maitland  in  the 
Law  Quarterly  Revnew,  xiii.  135.   Cf.  also  infra,  chap.  xii. 

'  Scott  V.  Sebright,  12  P.  D.  21. 

'  Deer.  Grat.  Causa,  xxix.  q.  i.   Cf.  AylifTe,  Parergon,  p.  361. 

*  The  decree  of  nullity,  on  the  ground  of  misnomer,  in  Wilson  v.  Horn, 
41  Scottish  Law  Reporter,  would  seem  to  be  questionable. 

*  Cf.  R.  Browning,  The  Ring  and  the  Book,  11.  1309-1319. 


I/O  PRIVATE    LAW:    RIGHTS   'IN    REM.' 

CHAP.  XI.  the  woman  proves  to  be  pregnant  aliunde^  by  Courts, 
whether  Catholic  or  Protestant,  administering  the  Canon 
Law.  It  is  contradicted  by  the  interpretation  placed  upon 
the  Code  Civil,  art.  i^o,  the  Codice  Civile,  art.  105,  the 
Austrian  Civil  Code,  art  58,  and  the  German  Civil  Code, 
art.  1333  ;  as  well  as  by  a  course  of  American  decisions  \ 
It  was,  however,  followed  in  the  Privy  Council  in  1835  ^ 
and  recently  by  Sir  F.  Jeune,  in  a  case  where  the  husband 
had  unwittingly  married  a  woman  far  advanced  in 
pregnancy  by  another  man^ 

Marriage  has  been  very  generally  associated  with  some 
religious  observance,  and  in  modern  times  is,  as  a  rule, 
valid  only  when  performed  in  the  manner  prescribed,  and 
in  the  presence  of  officials  recognised,  by  the  State ;  e.  g. 
where  the  decrees  of  the  Council  of  Trent  are  accepted, 
the  ceremony  must  take  place  in  the  presence  of  a  priest. 
The  law  of  Scotland,  a  survival  from  prae-Tridentine 
times,  demands  for  a  valid  marriage  only  the  mutual  con- 
sent of  competent  parties,  which  may  be  established  not 
only  by  a  declaration  de  praesenti^  but  also  by  verba  de 
futuro  subsequente  copula^  and  even  by  cohabitation  with 
'habit  and  repute \'  The  contract  is  generally  only  per- 
missible between  persons  who  have  attained  a  certain  age, 
and  who  are  outside  of  certain  degrees  of  relationship, 
amongst  wliich '  fosterage '  is  sometimes  reckoned.  The  con- 
sent of  parents  or  other  guardians  is  often  also  necessary  ^. 


*  E.  g.  Reynolds  v.  Reynolds,  3  Allen  (Mass.)  605,  extended  by  Smith 
V.  Smith,  171  Mass.  404.  So  also  at  the  Cape,  in  Horah  v.  Horah  (1861), 
3  Searle,  389.  The  U.  S.  cases  are  attacked  by  L.  M.  Friedman  in 
American  L.  R.  xxxii.  p.  568;  defended  by  F.  G.  Fessendeu  in  Harvard 
L.  R.  xiii.  p.  no. 

'  Swift  V.  Kelly,  3  Knapp,  256. 

'  Moss  V.  Moss  [1897]  P.  263,  in  which  the  authorities  were  carefully 
considered. 

*  Ersk.  Inst.  i.  6.  2-6. 

'  But  the  Council  of  Trent,  Seas,  xxiv,  Decretum  de  Reform.  Matr., 
c.  I,  anathematises  'qui  falso  affirmant  matrimonia  a  filiisfamilias  sine 


FAMILY.  171 

Marriage  is  defined  by  Modestinus  as  '  Coniunetio  maris  chap,  xi 
et  feminae  et  consortium  omnis  vitae,  divini  et  humani  iuris 
commmiicatio ^ ' ;  by  Kant  as  'die  Verbindung  zweier 
Personen  verschiedenen  Geschlechts  zum  lebenswierigen 
wechselseitigen  Besitz  ihrer  Geschlechtseigenschaften '^ .' 
Polygamy,  i.  e.  polygynaeky  or  polyandry,  has  been  and 
is  recognised  as  marriage  in  many  parts  of  the  world,  but 
the  tendency  of  the  higher  races  of  mankind  is  doubtless 
towards  a  recognition  of  monogamy  as  alone  legitimate'. 
Of  marriage  for  a  definite  period  but  slight  traces  occur 
in  legal  systems  ^ 

Under  the  marriage  law  of  ancient  Egypt,  which  was 
strictly  monogamous,  the  woman  seems  regularly  to  have 
been  taken  on  probation  for  a  year,  after  which  she  was 
'  established  as  a  wife  ^.' 

The  marital  right  is  of  course  inalienable,  and  incapable 
of  waiver  ®.  It  terminates  on  the  death  of  one  of  the 
parties,  or  their  divorce.  As  to  the  permissibility  of 
divorce,  and  the  grounds  on  which  it  ought  to  be  granted, 
the  widest  difference  has  prevailed  in  different  systems. 
At  Home  either  party  might  repudiate  the  relation- 
ship   at    pleasure",   while    according    to    the    canon    law 


consensu  parentum  contracta  irrita  esse.'  See  A.  Rivier,  Droit  de  Famille 
Romain,  p.  142. 

'  Dig.  xxiii.  2.  i.  ^  Werke,  vii.  p.  76. 

^  So  the  Eflglish  Courts  have  refused  recognition  in  Hyde  v.  Hyde,  L.  R. 
I  P.  &  M.  130,  to  a  Mormon,  and  in  Bethell  v.  HilHard,  38  Ch.  D.  220, 
to  a  Baralong  marriage.  On  the  other  hand,  a  Japanese  (monogamous) 
marriage  was  declared  valid  in  Brinkley  v.  Atty.  Gen.,  15  P.  D.  76. 

*  Such  marriages  are  regulated  with  the  utmost  precision  by  the  Shiah 
system  of  Muhammadan  law.  Tagore  Lectures,  1874,  p.  373.  But  it  is 
expressly  enacted  by  art.  13  of  the  Egyptian  'Statut  personnel  du  droit 
Musulman,'  that  'le  mariage  temporaire,  celui  dont  la  dur^e  est  limit^e 
k  un  temps  determine,  ne  se  contracte  pas  valablement.* 

*  Revillout,  Chrestomathie  D^motique,  1880,  p.  cxxxii. 

*  No  damages  will  however  be  granted  against  a  co-respondent  if 
collusion  is  shown. 

'  Libera  matrimonia  esse  antiquitus  placuit,  ideoque  pacta,  ne  liceret 
divertere,  non  valere.'    Cod.  viii.  39.  2.    In  the  older  Roman  law,  a 


172 


PRIVATE   LAW:    RIGHTS  «IN    REM.' 


CHAP.  XI.  it  is  a  sacrament,  indissoluble  under  any  circum- 
stances \ 

Under  some  systems  marriage  may  have  a  retroactive 
effect,  in  legitimating  previously  born  children  ^ 

The  right  is  infringed  by  so  injuring  the  wife  as  to 
deprive  the  husband  of  her  services;  also  by  abduction 
or  harbouring  of,  or  by  criminal  intimacy  with,  another 
man's  wife  I  The  '  co-respondent,'  as  the  adulterer  is  now 
called  in  English  law,  is  not  liable  for  his  act  if  he  was 
unaware  that  the  woman  was  married  *. 

Parental.  2.  The  parental  right  extends  to  the  custody  and  control 

of  children,  and  to  the  produce  of  their  labour,  till  they 
arrive  at  years  of  discretion.  In  case  of  disagreement 
between  the  parents,  it  becomes  necessary  to  determine  to 
which  of  them  the  right  shall  belong,  or  to  apportion  it 
between  them. 

It  is  acquired  on  the  birth,  and  also,  under  some  systems, 
on  the  adoption  of  a  child.    It  is,  under  some  systems. 


paterfamilias  could  divorce  a  son  or  daughter  in  his  power;   but  see 
Dig.  Ixiii.  30.  I.  5. 

*  Divorce  is  still  unknown  in  Italy,  as  was  the  case  in  France  (except 
during  the  interval  1 792-1816)  till  the  year  1884,  and  in  England 
(except  by  Act  of  Parliament)  till  the  institution  of  the  Court  for 
Divorce  and  Matrimonial  causes,  in  1857.  In  Germany  divorce  has 
long  been  generally  and  readily  permitted,  as  it  is  in  most  of  the  States 
of  the  American  Union.  See  the  interesting  work  of  Dr.  Theodore 
D.  Woolsey,  Divorce  and  Divorce  Legislation,  1882;  and  D.  W.  Amram, 
The  Jewish  Law  of  Divorce  according  to  the  Bible  and  Talmud,  1898. 
On  the  laws  of  marriage  and  of  divorce  in  different  countries,  see  Pari. 
Papers  1894  (c.  7392), and  Sir  D.  Fitzpatrick,  in  Journal  of  Comp.  Legisl., 
N.  S.  Nos.  V.  p.  359,  viii.  p.  157.  On  Indian  marriage  laws,  see  ib.  viii. 
p.  271. 

*  On  'legitimatio  per  subsequens  matrimonium,'  see  Journal  Comp. 
Legisl.,  N.  S.  No.  vi.  p.  23. 

*  This  last  mentioned  infringement  of  the  right,  besides  giving  rise 
to  a  right  of  redress,  may  also  affect  indirectly  the  matrimonial  status 
itself;  as  will  appear  hereafter. 

*  But  see  Lord  v.  Lord  &  Lambert  [1900]  P.  297,  drawing  a  distinction 
between  damages  and  costs. 


FAMILY.  173 

alienable  by  emancipation  of  the  child  to  another  person  chap,  xi 
who  adopts  him,  or  by  the  father  giving  himself,  together 
with  his  children,  in  adoption  to  another.  It  may  be 
delegated ;  for  instance,  to  a  schoolmaster,  or  to  the  master 
of  an  apprentice.  It  terminates  with  the  death  of  the 
parent  or  child,  with  the  emancipation  of  the  child,  or 
by  his  attaining  full  age,  by  marriage,  also  by  judicial 
sentence. 

It  is  infringed  by  an  act  which  interferes  with  the 
control  of  a  parent  over  his  children,  or  with  the 
advantage  which  he  derives  from  their  services.  The  much- 
abused  English  action  for  seduction  is  quite  in  harmony 
with  legal  principles.  The  person  ^vronged  is  not  the 
girl  herself,  who  ex  hypothesi  has  consented  to  the  act, 
but  her  parent,  or  other  person  entitled  to  her  services, 
who  is  damnified  by  its  results  \  It  is  true  that  English 
law  has,  on  grounds  of  policy,  allowed  damages  to  be 
recovered  in  this  action  far  in  excess  of  the  value  of 
the  lost  serviced 

3.  The  right  of  a  '  tutor,'  or  guardian,  defined  by  Servius  Tutelary, 
as  '  ius  ac  potestas  in  capite  libero  ad  tuendum  eum  qui 
propter  aetatem  se  defendere  nequit  V  is  of  course  given  to 
him  not  for  his  own  benefit,  but  for  that  of  his  '  pupillus,' 
or  ward*,  whose  want  of  understanding  he  supplements, 
and  whose  affairs  he  manages.  It  is  an  artificial  extension 
of  the  parental  power,  and  may  be  conferred  by  the  last 
will  of  the  parent,  or  by  a  deed  executed  by  him  \  or  by 


*  So  no  action  lies  against  a  seducer  who  is  also  the  girl's  employer. 
Whitboume  v.  Williams  [1901]  2  K.  B.  722.  By  Scots  law  a  woman 
seduced,  with  professions  of  honourable  intentions,  has  herself  an  action. 
Gray  v.  BrowTi  (1878),  5  Rettie's  Rep.  971. 

'  See  Dicey,  Parties,  p.  329  n.  '  Dig.  xxvi.  i.  i. 

*  The  lord's  wardship  in  chivalry,  without  account  of  profits,  was,  on 
the  contrary,  for  his  own  benefit. 

*  See  Stat.  12  Car.  II.  c.  24.  s.  8,  as  varied,  in  favour  of  the  mother,  by 
49  &  50  Vict.  c.  27. 


174 


PRIVATE   LAW:    RIGHTS  'IN    REM.' 


CHAP.  XI.  a  judicial  act,  or  by  devolution  on  certain  defined  classes 
of  relatives,  or  may  vest  in  a  tribunal,  such  as  the  Court 
of  Chancery.  According  to  some  systems,  the  guardian 
cannot  refuse  to  accept  the  ofBce,  which  is  regarded  as 
being  of  a  pubhc  character.  In  French  law  a  'subroge 
tuteur'  is  appointed  by  the  family  council  as  a  check  on 
the  '  tuteur  \'  The  right  terminates  on  the  death  of  tutor 
or  ward,  on  the  resignation  or  removal  of  the  former,  and 
on  the  marriage  of  the  latter  or  his  attainment  of  a  certain 
age.  By  the  older  Roman  law,  a  woman  was  under  per- 
petual guardianship.  Under  those  systems  which  release 
the  ward  at  an  early  age,  generally  at  fourteen  in  the 
case  of  a  boy  and  twelve  in  the  case  of  a  girl,  from 
the  superintendence  of  his  guardian,  he  may  be  placed  for 
a  further  period  under  the  lighter  control  of  a  '  curator,' 
whose  duties  cease  when  the  ward  attains  the  age  of 
full  majority.  Such  curators,  and  the  curators,  or  com- 
mittees, of  lunatics  or  persons  interdicted  as  prodigals, 
are  generally  appointed  by  a  court  of  justice. 

The  right  is  infringed  by  any  interference  with  the 
control  of  the  tutor  or  curator  over  the  person  or  property 
of  the  ward,  lunatic,  or  prodigal  ^. 


Domini- 
cal 


4.  The  right  of  a  master  over  his  slaves  was,  in  early 
law,  of  precisely  the  same  extent  and  character  as  that 
which  he  had  over  his  cattle.  It  was  also  acquired,  lost 
and  transferred  in  the  same  way,  except  that  the  slave 
was  capable  of  being  manumitted;  and  the  peculiarities 
of  the  subject  all  had  reference  to  the  modes  of  manu- 
mission, and  the  legal  position  of  those  who  had  ceased 
to  be  slaves.  The  disabilities  of  '  libertini,'  and  their  duty 
towards  their  '  patroni,'  fill  a  large  chapter  in  Roman  law. 


*  Code  Civil,  art.  420. 

^  On  the  writ  of  '  ravishment  of  gard,'  see  2  Inst.  440.  When  the 
tutelary  right  has  been  vested  in  a  Court,  any  infringement  of  it  tecomes 
a  matter  of  public  law.  Thus  interference  with  a  ward  of  Chancery  is 
treated  as  '  contempt  of  Court.' 


CONTRACTUAL.  1/5 

The  right  is  infringed  by  killing  the  slave,  by  injuring    chap.  xi. 
him  so  that  he  becomes  less  valuable  \  or  by  enticing 
him  away^ 

Certain  rights  arising  out  of  contract  strikingly  resemble  Contrac- 
the  two  classes  of  family  rights  last  considered.  They 
must  be  mentioned  in  this  place  in  so  far  as  they  are 
available  against  all  the  world,  and  are  therefore  capable 
of  being  violated  by  third  parties ;  although  the  mode  in 
which  such  rights  are  acquired  and  lost,  and  their  effect 
as  between  the  contractors  themselves,  can  be  explained 
only  at  a  later  stage  of  our  inquiry. 

A  master  has  a  right,  as  against  the  world,  to  the 
services  of  his  servant,  and  can  sue  not  only  any  one  by 
whose  act  the  servant  is  rendered  less  capable  of^  or  is 
hindered  from*,  performing  his  duties,  but  also  any  one 
who  entices  him  away  from  the  performance  of  them*: 
and  this  principle  has  been  declared  to  apply  not  only  to 
domestic  service,  but  also  to  any  kind  of  employment. 
In  a  modern  English  case,  when  a  celebrated  singer  had 
agreed  with  the  manager  of  an  opera  to  sing  for  him 
during  a  definite  period,  and  for  no  one  else,  but  had 
been  persuaded  by  the  manager  of  another  opera  to 
break  her  contract,  it  was  held  that  the  first  manager 
had  a  right  of  action  against  the  second.    The  claim  was 


*  Acts  for  which  remedies  were  provided  by  chapters  i  and  3  of  the 
Lex  Aquilia. 

^  In  which  case  the  owner  had  in  Roman  law  an  action  'servi 
corrupti.' 

'  It  was  held  in  Osborne  v.  Gillett,  L.  R.  8  Ex.  88,  diss.  Bramwell  B., 
that  a  master  has  no  redress  for  an  act  which  causes  the  immediate  death 
of  his  servant. 

*  Cf.  the  wTit  (14  Ed.  IV.pl.  i3)'quare  tenentes  suos  verberavit  per 
quod  a  tenura  sua  recesserunt,'  and  others  cited  by  Sir  F.  Pollock,  Torts, 
ed.  vii.  p.  231,  and  his  remark  that  'picketing'  may  be  a  trespass  at 
common  law  against  the  employer. 

*  The  seduction  of  a  maid-servant  may  give  a  right  of  action  to  her 
master.    Fores  v.  Wilson,  Peake,  55. 


1/6  PRIVATE    LAW:    RIGHTS  'IN    REM.' 

CHAP.  XI.  resisted  on  the  ground  that  the  employment  was  not  of 
such  a  nature  as  to  warrant  the  application  of  the  ex- 
ceptional remedy  given  against  any  one  who  wrongfully 
and  maliciously  entices  a  servant  away  from  his  master, 
indeed  that  this  remedy  was  itself  an  anomalous  relic  of 
the  times  of  serfdom.  But  the  majority  of  the  Court 
adopted  the  view  expressed  by  Mr.  Justice  Crompton, 
who  said :  — '  The  nature  of  the  injury  and  of  the  damage 
being  the  same,  and  the  supposed  right  of  action  being 
in  strict  analogy  to  the  ordinary  case  of  master  and 
servant,  I  see  no  reason  for  confining  the  case  to  services 
or  engagements  under  contracts  for  services  of  any  par- 
.ticular  description  \' 

Later  cases  have  established  the  broad  principle  that,  apart 
from  any  question  of  domestic  service,  a  person  who  induces 
a  party  to  a  contract  to  break  it,  causing  damage  thereby 
to  the  other  party  to  it,  with  intent  to  injure  that  party,  or 
to  get  a  benefit  for  himself,  commits  an  actionable  wrong  ^. 

Reputa-  III.  A  man  has  a  right,  as  against  the  world,  to  his 

good  name ;  that  is  to  say,  he  has  a  right  that  the 
respect,  so  far  as  it  is  well-founded,  which  others  feel 
for  him  shall  not  be  diminished  I  The  right  is  however 
subject  to  two  limitations.  First,  there  are  certain  trivial 
imputations  which  do  not  infringe  it.  Secondly,  there 
are  certain  circumstances  under  which  an  imputation 
which  would  otherwise  be  wrongful  is  held  to  be  justi- 
fiable. Since  the  right  is  only  to  respect  so  far  as  it  is 
well-founded,  it  is  obviously  not  infringed  by  a  truthful 


*  Lumley  v.  Gye,  2  E.  &  B.  216,  diss.  Coleridge  J.;  Walker  v.  Cronin, 
107  Mass.  555. 

*  Bowen  v.  Hall,  L.  R.  6  Q.  B.  Div.  333,  diss.  Lord  Coleridge  C.  J.; 
Temperton  v.  Russell  [1893]  i  Q.  B.  (C.  A.)  715.   Cf.  infra,  p.  180. 

'  The  Twelve  Tables  recognised  it  to  be  a  grave  offence:  'si  quis 
occentavisset,  sive  carmen  condidisset  quod  infamiam  faceret  flagitiumve 
alteri.'   Cic.  de  Rep.  iv.  10. 


REPUTATION.  177 

imputation*.  It  is  innate,  or  common  to  all  men,  and 
lasts  till  death. 

The  infringement  may  consist  not  only  in  words,  spoken 
or  written,  but  also  in  gestures  or  pictures.  It  may  be 
direct  or  indirect,  1.  e.  it  may  disparage  the  man  himself, 
or  his  family  and  belongings.  So,  according  to  Roman 
law,  the  heirs  of  a  deceased  person  would  have  an  action 
for  any  insult  to  his  dead  body,  or  to  his  funeral  pro- 
cession ;  and  a  son  could  sue  for  damage  done  to  a  statue 
of  his  father  set  up  upon  his  tomb^.  'Publication'  is 
essential  to  an  infringement  of  this  right,  which  is  there- 
fore not  violated  by  abuse  of  a  man  in  a  letter  addressed 
to  himself,  or  uttered  by  word  of  mouth  when  no  one 
else  is  near'.  There  is  no  infringement  without  a 
wrong  intention,  though  it  need  not  necessarily  have 
been  directed  against  the  complainant  *.  '  Iniuriam  potest 
facere  nemo,  nisi  qui  scit  se  iniuriam  facere,  etiam  si 
nesciat  cui  f aciat  ^ ' ;  and  no  more  than  this  is  meant  by 
the  Enghsh  doctrine  of  '  maUce '  being  essential  to  defa- 
mation, since  malice  will  be  '  presumed '  where  there  exists 
no  legal  justification.  '  If  I  traduce  a  man,'  said  Mr.  Justice 
Bayley,  *  whether  I  know  him  or  not,  and  whether  I  intend 
to  do  him  an  injury  or  not,  the  law  considers  it  as  done 
of  malice,  because  it  is  wrongful  and  intentional  *.' 

Roman  law  classified  acts  of  insult  according  to  the 
rank  of  the  person  insulted,    the  place  where,  and  the 


'  'Niemand  ein  Recht  auf  einen  Scheinwerth  und  auf  Liigen  haben 
kann.'    Dresch,  Naturrecht,  p.  158.   Cf.  Dig.  xlvii.  10.  18  pr. 

'  Dig.  xlvii.  I.  4;  ib.  27.    Cf.  an  art.  in  Am.  Law  Review,  xxiii.  p.  578. 

*  Or  uttered  by  a  man  to  his  wife,  Wennhak  v.  Morgan,  20  Q.  B.  D.  635. 
AHter  in  Scot-s  law,  cf.  L.  Q.  R.  xviii.  p.  257.  Defamation  in  a  Will  is  no 
lil^el,  goods  of  Honeywood,  L.  R.  2  P.  &  D.  251 ;  and  see  Harvard  L.  Rev., 
xviii.  p.  483. 

*  But  the  repetition  of  a  rumour  may  be  actionable,  Watkin  v.  Hall, 
L.  R.  3  Q.  B.  396. 

*  Dig.  xlvii.  5.  2;  cf.  ib.  10.  18.  3. 

'  Bromage  v.  Prosser,  4  B.  &  C.  255. 

HOLLAND  N 


178  PRIVATE    LAW:    RIGHTS    'IN    REM.' 

CHAP,  XI.    mode  in  which,  the  insult  was  given  \  but  did  not  clearly 

distinguish  defamation  from  insult  given  by  blows.    The 

grades  of  defamatory  statement    recognised    by  English 

law  may  be  probably  summed  up  as  follows: — 

Degrees  of         i.  Some  statements    are  wrongful    irrespectively  either 
Defama- 
tion, of  the  mode  m  which    they  are    published,   or  of  their 

consequences,  e.  g,  the  imputation  of  an  indictable  offence, 

or  of  ignorance  of  one's  profession,  or  of  insolvency  in 

trade.    There  is  an  absolute  right  that  such  statements 

shall  not  be  made. 

2.  Others,  short  of  these  in  importance  and  tending  to 
make  a  man  ridiculous  rather  than  odious,  are  wrongful 
only  if  put  into  a  permanent  form,  i.  e.  only  if  they  are 
written,  printed,  or  suggested  by  pictures  ^  when  they 
are  said  to  be  a  '  libel  V 

3.  Others  are  wrongful  only  if  special  and  'temporal' 
loss  can  be  shown  to  have  resulted  from  their  being 
made.  It  has  been  for  instance  laid  down  that,  without 
proof  of  special  damage,  it  is  not  actionable  to  say  of 
a  man  that  'he  is  a  scoundrel,  a  blackguard,  a  swindler,' 
'  he  is  a  disgrace  to  the  town  and  unfit  for  decent  society,' 
'he  has  cheated  his  brother-in-law  of  ;^2ooo^'  Only  by 
a  recent  statute^  have  words  imputing  unchastity  to  a 
woman  been  made  actionable  without  proof  of  special 
damage. 

*  Compare  in  English  lawthe  statutes  against '  scandalum  magnatum,' 
repealed,  as  obsolete,  by  50  &  51  Vict.  c.  59. 

^  Or  by  exhibiting  a  man's  waxwork  effigy  in  propinquity  to  effigies  of 
infamous  characters.    Mason  v.  Tussaud  [1894]  i  Q.  B.  671. 

'  This  distinction,  which  seems  to  be  purely  English,  is  as  old  as  the 
time  of  Charles  II.  King  v.  Lake,  Hardr.  470,  Skinn.  124;  Thorley  v. 
Lord  Kerry,  4  Taunt.  335.     See  F.  C.  Carr,  in  L.  Q.  R.  xviii.  p.  388. 

*  See  Savile  v.  Jardine,  2  H.  Bl.  532;  Lumley  v.  Allday,  i  Cr.  and  Jer. 
301;  Hopwood  V.  Thorn,  8  C.  B.  316.  '  Defamation  was  also  a  common 
subject  for  spiritual  censures,  and  the  fact  that  it  was  so  explains  the 
rule  of  the  common  law  that  no  action  lies  for  words  spoken  unless  they 
impute  a  crime,  or  relate  to  a  man's  profession  or  trade,  or  cause  special 
damage.'    Stephen,  History  of  the  Criminal  Law  in  England,  ii.  p.  409. 

*  54  &  55  Vict,  c,  51, 


ORDINARY   RIGHTS.  179 

The  most  important  of  the  modes  m  which  a  defamatory  chap.  xi. 
statement  may  be  justified  is  by  showing  that  it  is^.^^^'^*^" 
'  privileged.'  This  can  be  done  by  showing  either  that 
the  defendant  was  acting  in  a  certain  capacity,  e.  g.  as 
a  Judge,  an  advocate,  or  a  witness ;  or  that  the  circum- 
stances are  of  a  certain  class,  e.  g.  that  a  character  was 
given  to  a  servant,  the  presumption  of  malice  is  then 
rebutted,  and  the  onus  of  proving  actual  malice  is  thrown 
upon  the  plaintiff.  If,  however,  this  can  be  proved  \  or 
if  the  statement  was  carelessly  so  made  as  to  reach  others 
than  those  to  whom  it  might  properly  be  addressed  \ 
the  plea  of  'privilege'  is  unavailing.  Statements  made 
in  the  course  of  judicial  proceedings  or  to  a  person  having 
an  interest  in  their  being  made,  fair  reports  of  trials, 
legislative  debates,  or  public  meetings,  fair  comments  on 
public  men,  and  fair  criticisms  of  literary  and  artistic 
productions  are  privileged  ^ 

IV.  The  next  class  of  rights   is  of  a  vaguer  character  Exercise  of 
and  a  wider  range   than   those  which  have  already  been  ^^j'^^'^^ 
considered.    Every   one    is    entitled   without    molestation 
to  perform  all  lawful  acts  and  to  enjoy  all  the  privileges 
which  attach  to  him  as  an  inhabitant  of  the  country  in 
which  he  lives. 

I.  The  most  specific  right  of  this  kind  is  to  the  unmo-  Liveli- 
lasted  pursuit  of  the  occupation  by  which  a  man  gains 
his  livelihood.  The  English  law  upon  this  subject  is  thus 
explained  by  Lord  Holt :  — '  He  that  hinders  another  in 
his  trade  or  livelihood  is  liable  to  an  action  for  so 
hindering  him.  .  ,  .  There  are  two  sorts  of  acts  for  doing 
damage  to  a  man's  employment,  for  which  an  action  lies ; 
the  one  is   in  respect  of   a   man's   privilege,  the  other  in 


*  See  Taylor  v.  Hawkins,  16  Q.  B.  321. 

'  Williamson  v.  Freer,  L.  R.  9  C.  P.  393;  Hebditch  v.  Mcllwaine  [1894] 
2  Q.  B.  55. 
'  See  3  &  4  Vict.  c.  9;   51  &  52  Vict.  c.  64. 

N2 


l8o  PRIVATE    LAW:    RIGHTS   'IN    REM.' 

CHAP.  XI.  respect  of  his  property.  In  that  of  a  man's  franchise  or 
privilege,  whereby  he  hath  a  fair,  market  or  ferry;  if 
another  sliould  use  the  like  liberty,  though  out  of  his 
limits,  he  shall  be  liable  to  an  action  though  by  grant 
from  the  king.  But  therein  is  the  difference  to  be  taken 
between  a  liberty  in  which  the  public  hath  a  benefit, 
and  that  wherein  the  public  is  not  concerned.  The  other 
is  where  a  violent  or  malicious  act  is  done  to  a  man's 
occupation,  or  profession,  or  way  of  getting  a  livelihood. 
There  an  action  lies  in  all  cases.  But  if  a  man  doth  him 
damage  by  using  the  same  employment,  no  action  will 
lie  \'  In  a  recent  case,  which  attracted  much  attention,  an 
attempt  so  to  extend  this  principle  as  to  render  actionable 
persuasions  and  threats,  unaccompanied  by  either  fraud 
or  violence,  whereby  an  employer  was  induced  to  terminate, 
as  he  had  a  right  to  do,  the  engagements  of  certain  of  his 
workmen,  and  not  to  employ  them  again,  was  eventually 
unsuccessful  ^.  This  decision  has,  however,  been  largely  ex- 
plained away  in  a  subsequent  case  of  equal  authority,  and  it 
may  be  safely  asserted  that,  as  a  general  rule,  in  the  absence 
of  justification,  coercion,  and  even  persuasion,  leading  to 
the  breach  of  a  contract  of  service,  on  the  part  of  either 
employer  or  servant,  or  perhaps  if  merely  preventing  the 
formation  of   such   a  contract,  is  an  actionable  wrong,  if 


'  Keeble  v.  Hickeringill,  1 1  East,  575  n.  Cf .  Lumley  v.  Gye  2  E.  &  B. , 
216;  Tempertonr.  Russell  [1893]  iQ.  B.  715.  The  innocence  of  commercial 
competition,  causing,  even  intentionally,  loss  to  others,  was  conclusively 
established  in  the  Mogul  Steamship  Co.  v.  McGregor  [1892]  A.  C.  25;  but 
in  America  the  tendency  is  strong  against '  unfair  competition,'  by  means 
of '  Trusts '  and '  Combines.'  See,  with  especial  reference  to  the  Sherman 
Anti-Trust  Law  of  1 890,  Journal  of  Comp.  Legislation,  ii.  p.  330.  For  the 
confused  state  of  the  law  on  this  point  in  America,  see  Harvard  Law 
Re^^ew,  vii.  p.  338. 

*  Allen  V.  Flood  [1898]  A.  C.  i,  so  held  in  the  House  of  Lords  by  6  to  3, 
after  two  arguments,  and  hearing  the  opinions  of  the  Judges.  Of  the 
twenty-one  Judges,  however,  who  heard  the  case  at  its  various  stages, 
thirteen  differed  from  the  final  decision,  which  largely  turned  upon 
disputed  facts. 


ORDINARY  RIGHTS.  l8l 

productive  of  actual  damage  to  the  party  thereby  intention-    chap,  xi 
ally,  though  indirectly,  injured'.    Not  dissimilar  also  are 
statements  in  disparagement  of  title  to  property,  giving 
rise  to  the  action  for  'slander  of  titled' 

2.  Everyone  has  a  right  to  the  free  and  unobstructed  Highways, 
use  of  the  public  highways  and  of  navigable  rivers.  Not 
only  is  any  interference  with  the  use  of  them  a  public 
wrong,  which  may  be  redressed  criminally,  but  each  one 
of  the  community  has  also  a  private-law  right  not  to  be 
inconvenienced  by  such  interference  ^.  This  right  has  been 
held  to  be  violated  where  a  traveller  found  his  accustomed 
road  blocked  up,  and  was  forced  to  go  by  a  longer  way 
to  his  destination;  where  an  omnibus  was  wilfully  so 
driven  as  to  hinder  the  progress  of  another  omnibus ; 
where  damage  was  caused  by  a  house  which  was  so  built 
as  to  intrude  upon  the  highway,  and  where  a  vessel  was 
injured  by  piles  which  had  been  driven  into  the  bed  of 


*  Quinn  v.  lyeathem  [1901]  A.  C.  495;  Glamorganshire  Coal  Co.  v. 
S.  Wales  Miners'  Federation  [1903]  2  K.  B.  545;  Giblan  v.  Nat.  Labourers' 
Union,  ib.  600.  So  also  in  Vegelahn  v.  Guntner,  167  Mass.  92  (diss. 
Holmes  J.).  The  English  cases  are  reviewed  in  Pollock,  Torts,  ed.  vii. 
pp.  317-326.  Cf.  an  article  in  the  Journal  of  Comp.  Legisl.  N.  S.  vi. 
p.  453  on  the  French  doctrine  of  'I'exercice  abusif  d'un  droit,'  citing 
Joost  v.  Le  Syndicat  de  Jallieu,  Sirey  1893,  i.  42,  in  which  the  Cour  de 
Cassation  lays  down  that  although '  les  menaces  de  greve  sont  licites  quand 
elles  ont  pour  objet  la  defense  des  int^rets  professionels,  elles  ne  le  sont 
pas,  lorsqu'elles  ont  pour  but  d'imposer  au  patron  le  renvoi  d'un  ouvrier, 
parcequ'il  s'est  retire  de  I'association  et  qu'il  refuse  d'y  rentrer';  citing 
also  the  new  art.  642  of  the  Code  Civil,  and  art.  226  of  the  German  Civil 
Code,  to  the  effect  that  'Die  Ausixbung  eines  Rechtes  ist  unzulassig, 
wenn  sie  nur  den  Zweck  haben  kann,  einem  Anderen  Schaden  zuzu- 
fiigen.'     Cf.  also  Michigan  Law  Review,  ii.  p.  305. 

*  Which  is  supported  by  proof  of  malicious  statements  made  to  third 
parties  respecting  not  only  the  property,  strictly  so  called,  but  also  in- 
tangible rights  of  the  plaintiff,  such  as  goodwill,  or  a  trade  name, 
whereby  he  is  injured  in  his  business.  Cf.  Dig.  iv.  3.  32;  and,  on  the 
stringent  provisions,  especially  §  6,  of  the  German  Law  of  '  unfair  com- 
petition,' 'zur  Bekampfung  des  unlauteren  Wettbewerbs,'  of  1896,  Law 
Quarterly  Review,  xiii.  p.  r6o. 

^  He  may,  however,  become  a  trespasser  if  he  abuses  his  right  of  passage 
by,  e.  g.,  preventing  the  owner  of  the  soil  of  the  road  from  shooting  his 
preserves.    Harrison  v.  D.  of  Rutland  [1893]  i  Q.  B.  (C.  A.)  142. 


l82 


PRIVATE    LAW:    RIGHTS   'IN    REM.' 


Abuse  of 
legal  pro- 
cess. 


a   river   during  the   doing  of  some  work,  and  had   been 
left  there  after  its  completion. 

3.  Every  one  has  a  right  that  the  machinery  of  the 
law,  which  is  established  for  his  protection,  shall  not  be 
maliciously  set  in  motion  to  his  detriment.  This  right  is 
infringed  by  the  act  known  in  English  law  as  'maUcious 
prosecution,'  the  essence  of  which  is  that  it  is  done  both 
maliciously,  i.  e.  from  some  motive  other  than  that  of 
bringing  an  offender  to  justice,  and  without  reasonable  and 
probable  cause  \  A  prosecution,  though  it  originated  bona 
fide^  may  subsequently  become  malicious, '  if  the  prosecutor, 
having  acquired  positive  knowledge  of  the  innocence  of 
the  accused,  perseveres  malo  animo  in  the  prosecution, 
with  the  intention  of  procuring  per  nefas  a  conviction  ^' 
A  malicious  arrest,  mahcious  proceedings  to  cause  a  bank- 
ruptcy, and  abuse  of  a  writ  of  execution,  are  acts  of  the 
same  character  ^ ;  as  is  the  statutory  wrong  caUed  '  main- 
tenance,' i.  e.  assistance  rendered  in  a  suit  by  a  stranger 
to  it,  without  lawful  cause  ^  The  vexatious  institution 
of  a  civil  action  was  redressed  in  the  earlier  Roman  law 
by,  amongst  other  methods,  the  institution  of  a  cross 
action,  'calumniae  indicium,'  which  might  be  brought  by 
the  defendant,  either  during  the  progress  of  the  principal 
action,  or  after  judgment  in  his  favour,  against  a  dishonest 
plaintiff  ^.  But  by  the  time  of  Justinian  the  chief  restraint 
upon  malicious  or  frivolous  suits  was  the  infliction  of 
costs  upon  the  losing  party  ^  and  this  is  also  the  policy 


'  See  Abrath  v.  N.  E.  Ry.  Co.,  11  App.  Ca.  247. 

'  Fitz-John  v.  Mackinder,  9  C.  B.  N.  S.  531. 

»  Cf.  Quartz  HiU  Gold  Mining  Co.  v.  Eyre,  11  Q.  B.  Div.  674. 

*  But  charity  is  such  cause:  Harris  v.  Brisco,  17  Q.  B.  D.  504.  See 
Pollock,  Torts,  ed.  vii.  p.  328. 

^  'Qui  intelligit  non  recte  se  agere,  sed  vexandi  adversarii  gratia.' 
Gaius,  iv.  178.  Cf.  the  authorities  quoted  by  Mr.  Amos,  Journal  Comp. 
Leg.  N.  S.  vi.  p.  459,  on  the  French  doctrine  of  'plaidoirie  tem^raire.' 

'  Cod.  iii.  I.  13.  Both  plaintiff  and  defendant,  as  well  as  their  counsel, 
had  also  to  take  an  oath  as  to  the  goodne.ss  of  their  cause.  '  Nam  sacra- 
ment! timore  contentiosa  litigantium  instantia  compescitur.'  Cod.  ii.  59. 


PROPRIETARY.  .  183 

of    the    law  of    England  ^       Sometimes    the    plainti£f    is    chap.  xi. 
compelled  to  give    security  for  the    costs  for  which  he 
may  become  hable  in  case  he  should  lose  his  action  ^ 

V.  Many  of  the  rights  which  have  hitherto  engaged  Proprie- 
our  attention,  although  of  the  highest  importance,  relate  ^^'^^^ 
to  no  tangible  external  object.  One's  good  name,  for 
instance,  though  invaluable,  may  be  regarded  from  this 
point  of  view  as  an  '  airy  nothing  ^.'  The  same  remark 
will  not  apply  to  the  group  of  rights  which  we  are  now 
about  to  consider.  Proprietary  rights  are  extensions  of 
the  power  of  a  person  over  portions  of  the  physical  world. 
These  rights,  like  all  others,  are  made  available  by  means 
of  the  acts  or  forbearances  of  the  person  of  mcidence  ; 
but  such  acts  or  forbearances  are,  in  this  case,  due  with 
especial  reference  to  an  object,  or  thing,  from  which  the 
person  of  inherence  derives  some  advantage*. 

It  is  not  every  portion  of  the  material  world  which  is 
capable  of  being    thus    appropriated.     The  air,  the  sea. 


*  It  seems  that  there  may  be  cases  in  which  a  combination  of  malice, 
groimdiessness,  and  special  damage  will  entitle  a  defendant  to  an  action; 
see  Williams  J.,  in  Cotterell  v.  Jones,  11  C.  B.  730.  According  to  the 
older  law  the  plaintiff  found  pledges,  who  were  amerced  if  his  claim  was 
not  sustained.   Cf.  infra,  c.  xv. 

'  Such  security,  under  the  name  cautioiudicatumsolvi,' is  commonly 
exacted  on  the  Continent  from  a  foreign  plaintiff.  So  also,  as  a  rule,  in 
England,  under  Order  65,  r.  6. 

^  Still  less  tangible  would  be  the  '  right  to  privacy,'  or '  right  to  be  let 
alone,'  which,  it  has  been  suggested,  ought  to  be  so  far  recognised  as  to 
shield  a  man  from  the  publication,  without  his  consent,  of  his  portrait, 
or  of  the  details  of  his  private  life.  See  Harvard  Law  Review,  iv.  p.  195; 
vii.  p.  182.  A  French  law  of  1868  provides  that  'toute  publication 
dans  un  ^crit  p^riodique,  relative  a  un  fait  de  la  vie  priv^,  constitue  une 
contravention  punie  d'une  amende  de  1 50  francs.'  On  a  right  not  to  have 
one's  portrait  published,  see  Col.  L.  Rev.  ii.  pp.  437  and  486,  citing  a  series 
of  N.  Y.  cases.  An  Austrian  law  of  1896  requires  the  consent  of  the  sitter. 
Cf.  Prince  Albert  v.  Strange,  i  McN.  &  G.  25,  where  the  \\Tong  alleged  by 
the  plaintiff  was  the  publication  by  the  defendant  of  a  catalogue  of 
etchings  kept  private.  Cottenham  C.  here  said  that '  privacy  is  the  right 
invaded.' 

*  Supra,  p.  88. 


1 84  PRIVATE   LAW:    RIGHTS   'IN   REM.' 

CHAP.  XI.  and  the  water  of  rivers  are  for  the  common  use  of  all 
men,  but  belong  to  none.  Most  things,  on  the  other 
hand,  are  capable  of  subjection  to  the  human  will,  and 
in  them  proprietary  rights  may  be  acquired  which  vary 
in  extent  from  absolute  ownership  to  a  narrowly  limited 
power  of  user.  The  essence  of  all  such  rights  lies  not 
so  much  in  the  enjoyment  of  the  thing,  as  in  the  legal 
power  of  excluding  others  from  interfering  with  the  enjoy- 
ment of  it.  'If  a  man  were  alone  in  the  world,'  says 
Kant,  'he  could  properly  hold  or  acquire  nothing  as  his 
own;  because  between  himself,  as  Person,  and  all  other 
outward  objects,  as  Things,  there  is  no  relation  \'  The 
relation  is  between  him  and  other  people  whom  he 
excludes  from  the  thing.  The  whole  class  of  rights  may 
be  said  to  be  an  extension  of  the  advantage  which  a  man 
has  when  a  physical  object  is  actually  within  his  grasp. 
As  was  well  observed  by  Bentham :  — '  The  savage  who 
has  hidden  the  game  that  he  has  killed  may  hope  to 
keep  it  for  himself,  so  long  as  his  cave  is  undiscovered ; 
so  long  as  he  watches  to  defend  it,  or  is  stronger  than 
his  rivals ;  but  that  is  all.  How  wretched  and  precarious 
is  such  a  possession  ^ ! '  In  an  advanced  state  of  society 
a  man  is  secured  in  the  exclusive  enjoyment  of  an  object 
to  an  extent  far  beyond  what  he  can  assert  for  himself 
by  his  own  force.  His  personality,  as  some  writers  would 
say,  is  extended  over  a  wide  circle  of  matter. 
Degrees  of  What  had  up  to  this  time  been  a  mere  fact  now 
^  "^  "  begins,  by  the  aid  of  the  law,  to  assume  the  character  of 
a  right.  In  its  lowest  form  it  is  a  right  of  Possession,  in 
its  highest  form  a  right  of  Ownership.  The  former  is 
indeed  included  in  the  latter,  but  may  also  exist  apart 
from  it ;  in  which  case  its  nature  is  so  peculiar  that  some 

*  Rechtslehre,  Werke,  vii.  p.  60.  'Mein  —  Dasjenige  womit  ich  so 
verbimden  bin,  dass  der  Gebrauch,  den  ein  Andei-er  ohne  meine  Ein- 
willigung  von  ihm  machen  mochte,  mich  ladiren  wurde.'     lb.  p.  44. 

'  Bentham,  Principes  du  Code  Civil,  par  Dumont,  c.  ix. 


POSSESSION.  185 

deny  it  to   be  a   right   at   all.     The   owner  of   an  object    chap.  xi. 

has,  as  we   shall   see  presently,  the  right,  unless  he  has 

expressly  parted  with  it,  to  the  possession  of  that  object. 

But  a  person  who   is   in   possession,  merely  as  a   matter 

of  fact,  has  also  a  right  to  continue   in   possession,  and 

to  be  restored  to  possession,  should  he  have  been  deprived 

of  it ;  and  this  sometimes  even  as  against  the  owner. 

The  right  of  the  owner  to  possess  is  technically  called  Posses- 
the  *  ius  possidendi.'  The  right  of  the  possessor  to  continue  ^^^^' 
to  possess  is  called  the  'ius  possessionis.'  In  order  to 
ascertain  what  the  right  is,  if  any,  which  results  from 
possession,  it  is  necessary  to  enquire  what  that  possession 
is  which  is  recognised  as  having  legal  consequences.  This, 
as  Bentham  says,  'is  no  vain  speculation  of  metaphysics. 
Everything  which  is  most  precious  to  a  man  may  depend 
upon  this  question:  his  property,  his  Uberty,  his  honour, 
and  even  his  life.  Indeed  in  defence  of  my  possession 
I  may  lawfully  strike,  wound  and  even  kill,  if  necessary  *.' 
The  ascertainment  of  the  nature  of  legal  possession  is, 
in  fact,  indispensable  in  every  department  of  law.  It  is 
as  essential  to  the  determination  of  international  contro- 
versies arising  out  of  the  settlement  of  new  countries, 
or  to  the  conviction  of  a  prisoner  for  larceny,  as  it  is  to 
the  selection  of  the  plaintiff  in  an  action  of  trover  or 
trespass.  It  is  therefore  not  surprising  that  the  literature 
of  the  topic  is  a  very  large  one,  and  its  intricacies  not 
a  few.  We  shall  endeavour  to  present  it  in  as  simple  a 
form  as  possible. 

A  moment's  reflection  must  show  that  '  possession,'  in  Its  ele- 

mpnts 

any  sense  of  the  term,  must  imply,  first,  some  actual 
power  over  the  object  possessed,  and,  secondly,  some 
amount  of  will  to  avail  oneself  of  that  power.  Neither 
the  mere  wish  to  catch  a  bird  which  is  out  of  my  reach, 
'  Bentham,  Works,  v.  p.  188. 


l86  PRIVATE    LAV/:     RIGHTS    'IN    REM.' 

CHAP.  XI.  nor  the  mere  power  which  I  have,  without  the  least 
notion  of  exercising  it,  to  seize  a  horse  which  I  find 
standing  at  a  shop  door,  will  suffice  to  put  me  in  posses- 
sion of  the  bird  or  the  horse.  The  Romans,  by  whom 
this  topic  was  treated  with  great  fulness  and  subtlety, 
describe  these  essential  elements  of  possession  by  the 
terms  'corpus'  and  'animus'  respectively. 

Corpus.  i.  The  corporeal  element  presents  the  fewer  difficulties. 

He  who  is  popularly  said  to  be  in  possession  of  an  object, 
though  he  need  not  be  in  actual  contact  with  it\  must 
doubtless  have  it  so  far  under  his  control  as  to  be  able, 
unless  overpowered  by  violence,  to  exclude  others  from 
its  enjoyment.  But  this  requirement  has  long  been,  for 
legal  purposes,  very  liberally  construed.  It  was  admitted 
by  the  Roman  lawyers  that  possession  acquired  in  the 
first  instance  by  exclusive  physical  appropriation  might 
be  continued  by  something  falling  far  short  of  this,  as  the 
possession  of  a  mountain  pasture  may  continue  uninter- 
rupted, although  it  remains  unvisited  during  the  months 
of  winter^;  and  a  possession  is  in  many  cases  recognised 
by  them  which,  even  at  its  inception,  never  amounted 
to  full  physical  control  over  its  object:  so  the  purchaser 
of  a  quantity  of  wheat  is  put  into  possession  of  it  by 
being  given  the  keys  of  the  warehouse  in  which  it  is 
stored  ^  and  the  donee  of  an  estate  may  take  possession 
of  the  whole  by  entering  upon  any  one  portion  of  it, 
or  even  by  having  the  land  shown  to  him  from  some 
neighbouring  point  of  view  *.    A  long  succession  of  writers 


*  No  one  would  deny  that  a  soldier  lying  on  the  ground  with  his  rifle 
within  easy  reach  of  him,  is  in  possession  of  the  rifle.  Cf.  'Non  enira 
corpore  et  actu  [tactu?]  necesse  est  apprehendere  possessionem,  sed  etiam 
oculls  et  aflfectu.'    Dig.  xli.  2.  i.  21. 

^  '  Saltus  hibemos  aestivosque  animo  possidemus,  quamvis  certis  tem- 
poribus  eos  relinquamus.'   Dig.  xh.  2.  3.  11. 

*  Dig.  xviii.  i.  74;    xH.  2.  i.  21. 

*  Dig.  vi.  I.  77;  xli.  2.  3.  I,  and  18.  2. 


POSSESSION.  187 

has  maintained  that  the  acquisition  of  possession  in  these 
cases  is  symbolical,  or  fictitious ;  that  the  '  claves  horrei,' 
for  instance,  are  a  mere  symbol  of  the  contents  of  the 
warehouse.  The  error  of  attributing  this  view  to  the 
Roman  jurists  was  conclusively  shown  by  Savigny  \  and 
the  reason  why  in  English  law  deUvery  of  the  key  of 
bulky  goods  has  been  allowed  as  delivery  of  the  possession 
is  stated  by  Lord  Hardwicke  to  be  '  because  it  is  the  way 
of  coming  at  the  possession  or  to  make  use  of  the  thing  I' 

On  the  same  principle  it  was  said  that  a  man  who 
has  purchased  goods  acquires  possession  of  them  by  their 
delivery  at  the  house  where  he  is  residing,  though  no 
one  has  touched  them  on  his  behalf  ^  He  does  not 
acquire  possession  of  a  treasure  or  other  object  which  is 
buried  in  his  land,  since  this  is  not  within  his  exclusive 
control  in  the  same  way  that  a  house  is,  unless  he  actually 
digs  it  up  * ;  nor  of  a  wild  animal  which  he  has  wounded, 
till  he  actually  catches  it^  The  distinction  between  the 
cases  has  been  said  to  turn  upon  the  greater  or  less 
probability  of  the  power  to  exclude  others  from  the  object 
being  interfered  Avith.  'Every  one  will  acknowledge 
that  a  wounded  hare  may  easily  get  away  from  him,  or 
that  he  may  search  in  vain  for  hidden  treasure  so  long 
that  some  one  else  may  forestall  him ;  but  that  the 
sanctity  of  his  house  should  be  interfered  with  by  force, 
or  that  in  the  short  space  of  time  necessary  to  enter 
an  adjoining  field,  a  new  possessor  should  spring  up, 
who  was  not  previously  to  be  seen,  are  circumstances  so 
improbable  that  no  one  would  take  their  probability  into 


^  Recht  des  Besitzes,  §  17. 

^  He  adds:  'and  therefore  the  key  is  not  a  symbol,  which  would  not 
do.'  Ward  v.  Turner,  2  Ves.  Sen.  431,  cited  in  Pollock  and  Wright  on 
Possession,  p.  63.  On  the  other  hand,  when  a  locked  box  was  delivered, 
the  owTier  retaining  the  key,  it  was  held  that  the  contents  of  the  box  had 
not  been  delivered.    Reddel  v.  Dobrce,  10  Sim.  244,  cited  ibid.  p.  68. 

'  Dig.  xli.  2.  18;  xxiii.  3.  9.  3. 

*  lb.  xli.  2.  3.  3.  '  lb.  xli.  I.  5. 


l88  PRIVATE   LAW:     RIGHTS    'IN    REM.' 

CHAP.  XI.  consideration  *.'  The  distinction  must  obviously  be  a  fine 
one.  On  the  one  hand,  it  has  been  held  that  when  fish 
were  nearly  surrounded  by  a  seine  with  an  opening  of 
seven  fathoms  between  the  two  ends,  at  which  point 
boats  were  stationed  to  frighten  them  from  escaping, 
they  were  not  reduced  to  possession  as  against  a  stranger 
who  rowed  in  and  helped  himself.  On  the  other  hand, 
it  has  been  decided  that  the  custom  of  the  American 
whalemen  in  the  Arctic  ocean  is  a  good  one,  which  gives 
a  whale  to  the  vessel  whose  iron  first  remains  in  it, 
provided  claim  be  made  before  cutting  in  ^.  If  an  object 
be  under  the  control  of  a  servant,  exercised  on  behalf  of 
his  master,  it  is  under  the  control  of  the  master. 

Animus.  ii.  Mere  juxtaposition  is  not  possession.    'Furiosus,  et 

pupillus  sine  tutoris  auctoritate,  non  potest  incipere  pos- 
sidere,  quia  affectionem  tenendi  non  habent,  licet  maxime 
corpora  suo  rem  contingant,  sicuti  si  quis  dormienti  aliquid 
in  manu  ponat '.'  To  some  possibihty  of  physical  control 
there  must,  at  any  rate  for  the  commencement  of  posses- 
sion, be  superadded  a  will  to  exercise  such  control. 

This  mental  element  in  possession  may  conceivably 
be  manifested  in  three  degrees. 

Degrees  of.  In  its  lowest  degree  of  manifestation,  the  intent  of 
the  holder  of  an  object  goes  merely  to  the  length  of 
meaning  to  protect  it  against  violence,  without  asserting 
any  right  over  it  on  his  own  behalf.  Such  is  the  intent 
of  a  servant  who  is  entrusted  with  the  property  of  his 
master.  Such  possession  as  he  may  seem  to  have  is  fitly 
described  as  '  representative.' 

*  Savigny,  §  19. 

'  Young  V.  Hichens,  6  Q.  B.  606;  Swift  v.  GifFord,  2  Lowell,  no;  cited 
in  a  very  valuable  article  upon  Possession  contributed  by  Mr.  Justice 
Holmes  to  the  American  Law  Review,  vol.  xii.  See  also  his  'Common 
Law,'  p.  206. 

'  Dig.  xli.  2.  I.  3.  Such  a  relation  between  a  person  and  an  object  was 
described  by  the  Glossators  as  '  possessio  asinina,'  i.  e.  the  possession 
which  a  donkey  could  be  said  to  have  of  its  saddle. 


POSSESSION.  189 

A  higher  degree  of  intention  is  exhibited  by  those  chap.  xi. 
persons,  other  than  servants,  to  whom  objects  are  delivered 
for  various  purposes.  A  usufructuary,  a  borrower,  the 
lessee  of  land,  a  carrier,  all  intend  to  dispose  of  the  object 
over  which  they  are  given  a  control  otherwise  than  as 
they  may  be  from  time  to  time  directed,  although  none 
of  them  deny  the  title  of  the  'dominus  proprietatis,'  or 
of  the  person  who  has  delivered  the  objects  to  them, 
as  the  case  may  be,  to  be  still  outstanding. 

The  highest  degree  of  intention  is  a  denial  of  the 
right  of  any  other  than  the  possessor  himseK;  inasmuch 
as  the  possessor  means  to  pay  no  regard  to  any  other 
right  than  his  own.  This  is  the  intention  manifested,  on 
the  one  hand,  by  a  person  who  thinks  himself,  rightly 
or  wrongly,  to  be  the  owner  of  the  object  in  question, 
and  on  the  other  hand  by  a  thief  who  well  knows  that 
he  has  stolen  it. 

So  far  there  is  little  room  for  varieties  of  opinion.  The 
controversies  begin  when  we  proceed  to  enquire  what,  if 
any,  differences  of  legal  result  flow  from  a  difference 
between  these  several  degrees  of  intention.  We  have 
to  consider,  in  the  first  place,  the  view  of  the  question 
taken  by  the  Roman  lawyers  and  modern  civilians  by 
whom  the  enquiry  has  till  quite  lately  been  almost  ex- 
clusively conducted;  and,  secondly,  how  far  similar  ideas 
have  influenced  other  legal  systems,  and  more  especially 
the  common  law. 

(i)  There  is  no  doubt  that  the  classical  Roman  jurists  The 
recognised  two  degrees    of    control  over    an    object,  the^f^^^j^ 
lower  of  which    they  described  by  such  phrases  as,  'in law. 
possessione    esse,'    'naturaliter     possidere,'    '  corporaliter 
tenere,'  'alieno  nomine    possidere  \'     The    higher   degree 

*  'Nee  idem  est  possidere  et  alieno  nomine  possidere:  nam  possidet 
cuius  nomine  possidetur,  procurator  alienae  possessioni  praestat  mini- 
sterium.'     Dig.   xli.  2.   18.     Cf.  'Generaliter  quisquis   omnino  nostro 


IQO  PRIVATE    LAW:    RIGHTS    'IN   REM.' 

CHAP.  XI.  was  alone  recognised  by  them  as  '  possessio,'  properly  so 
called  \  and  such  possession  alone  was  protected  by  the 
Interdicts,  irrespectively  of  the  justice  or  injustice  of  its 
origin^,  against  any  one  from  whom  it  had  not  been 
acquired  'vi  clam  aut  precario^'  The  lower  degree  of 
possession  is  called  by  modern  civilians  'Detentio'  (In- 
habung),  while  they  distinguish  the  higher  as  'Possessio,' 
properly  so  called  (Besitz). 
Savigny.  According  to  what  may  perhaps  still  be  called  the  ac- 

cepted view,  these  two  degrees  were  differentiated  by  the 
intention  of  the  possessor.  Mere  detention,  or  'naturalis 
possessio,'  exists  when  the  intention  to  dispose  of  the 
object  is  limited  by  a  distinct  recognition  of  the  out- 
standing right  of  another ;  and  this  equally  whether  the 
holder  be  a  slave,  a  usufructuary  or  a  bailee.  '  Possessio ' 
exists,  when  the  holder  believes  himself  to  be  the  rightful 
owner  of  the  object,  or,  having  merely  found  it,  means  to 
keep  it  subject  to  the  possibility  of  the  owner  making 
his  appearance  ^  or,  having  stolen  it,  means  to  keep  it 
against  all  comers".  The  intention  of  such  a  possessor 
has  been  described  by  modern  civilians  as  the  'animus 
domini  V  but  more  recently  as  '  animus  possidendi,'  a  term 


nomine  sit  in  possessione,  veluti  procurator,  hospes,  amicus,  nos  possidere 
videmur.'   Dig.  xli.  2.  9. 

*  Improperly  described  by  the  earlier  commentators  as  'possessio 
civilis,'  a  term  which,  as  Savigny  has  shown,  §  7,  is  used  in  the  sources 
to  describe  possession  exhibiting  those  additional  characteristics  which 
enable  it  by  means  of  '  usucapio '  to  ripen  into  ownership. 

'  'lusta  enim  an  iniusta  adversus  ceteros  in  hoc  edicto  [sc.  uti  possi- 
detis] nihil  refert,  qualiscunque  enim  possessor,  hoc  ipso,  quod  possessor 
est,  plus  iuris  habet  quam  ille  qui  non  possidet.'  Dig.  xliii.  17.  2;  cf. 
ib.  xli.  2.  3.  5. 

3  The  remedies,  such  as  'actio  furti,'  enjoyed  by  persons  having  only 
'  possessio  naturalis,'  were  conferred  upon  them  in  respect  of  some  interest 
beyond  that  of  bare  possession.   See  Savigny,  §  42. 

*  Dig.  xliii.  17.  2. 

'  '  Pro  possessore  vero  possidet  praedo,  qui  interrogatus  cur  possideat 
responsurus  sit,  quia  possideo,  .  .  .  nee  ullam  causam  possessionis  possit 
dicere.'    Dig.  v.  3.  11-13. 

*  Apparently  coined  by  Cuiacius,  Obs.  ix.  33.   It  was  doubtless  sug- 


POSSESSION.  191 

for  which  there  is  classical  analogy  \  This  view  of  the  chap,  xi 
grounds  of  the  distinction  drawn  by  the  Roman  lawyers 
between  the  possession  which  would  be  and  that  which 
would  not  be  protected  by  the  Interdicts,  is  associated 
with  the  great  name  of  Savigny,  by  whom  it  was  for 
the  first  time  luminously  set  forth.  It  is  in  general 
accordance  with  the  language  of  the  classical  jurists,  and 
is  supported  by  the  fact  that  the  classes  of  persons  to 
whom  possessory  remedies  were  denied,  such  as  the  fruc- 
tuary,  the  lessee,  the  borrower  and  the  carrier,  were  just 
those  whose  intent  to  dispose  of  the  object  possessed  is 
limited  by  a  distinct  recognition  of  the  outstanding  right 
of  another.  Savigny's  theory  is,  however,  open  to  the 
objection  that  it  does  not  account  for  the  fact  that  the 
Interdicts  were  also  accorded  to  the  'emphyteuta,'  the 
pledge  holder,  the  'precario  tenens'  and  the  'sequester,' 
to  none  of  whom  can  the  'animus  domini'  be  attributed. 
Savigny  was  only  able  to  reply  by  saying  that  for  prac- 
tical reasons  what  he  calls  a  'derivative'  (' abgeleiteter ') 
possession  was  admitted  in  these  cases  ^.  This  and  other 
difficulties  in  the  current  view  have  recently  led  a  writer 
of  great  vigour  and  originality  to  attack  Savigny's  account 
of  the  Roman  theory  of  possession  as  a  whole. 

In  a  work  published  more  than  thirty  years  ago^ihermg. 
Professor  von  Ihering  showed  that  Savigny's  requirement 
of  actual  control  can  only  be  discovered  in  the  writings  of 
the  Roman  jurists  by  doing  considerable  violence  to  their 
language;  and  that  the  amount  of  control  demanded  by 
Roman  law  varied,  as  it  reasonably  should  vary,  according 


Rested  by  the  phraseology  of  Theophilus,  5io(^opi  yhp  rod  Kparfiv  Koi  rov 
vt/xtaOai  avrri'  Bri  Kparuv  fiiv  tan  rh  ipvffiKus  KaT€X«i»',  vf/^effOai  Si  rh  ^vXV 
Sfffir6(ovToi  Kartxdv,  iii.  29.  2;  cf.  ii.  9.  4.  Cf.  'opinione  domini,'  Dig. 
ix.  4.  22. 

*  '  Animus  possidentis '  occurs  inDig.  xli.  2.  i.  20; '  animus  possessionem 
adipiscendi'  in  Dig.  xiii.  7. 37;  and  'animus possessoris'  inDig.  xli.  2. 18.3. 

'  §  9- 

^  Grund  des  Besitzesschutzes,  1867. 


192  PRIVATE   LAW:     RIGHTS    'IN    REM.' 

CHAP.  XI.  to  the  nature  of  the  object  in  question,  so  that  cut  timber 
in  a  wood  might  well  be  held  to  remain  in  the  possession 
of  a  purchaser  who  had  left  it  lying  where  he  cut  it, 
although  his  watch,  if  found  in  the  same  place,  might 
be  treated  as  lost  property*.  In  going  on  to  assert  that 
possession  was  protected  merely  as  the  '  actuality  of 
ownership  V  or  as  being  to  ownership  what  an  outwork 
is  to  a  fortress  ^  Ihering  appears  to  us  to  come  into 
conflict  with  clear  statements  in  the  sources,  to  maintain 
an  anachronism,  and  to  be  inconsistent  with  his  own 
maturer  views  upon  this  point  as  incidentally  stated  in 
his  latest  work,  'Ueber  den  BesitzwHlen  ^'  It  is  in  this 
work  that  Ihering  has  delivered  a  long-prepared  attack 
upon  the  key  to  Savigny's  position,  the  'animus  domini.' 
Shortly  stated,  von  Ihering's  thesis  ^  is  that  the  difference 
between  Detention  and  Interdict-Possession  has  nothing 
to  do  with  the  will;  that  whoever  so  far  exerts  his  will 
over  an  object  as  to  obtain  Detention  of  it,  possesses  it 
for  all  purposes,  except  in  so  far  as  possession  is  denied 
to  him  by  some  special  rule  of  law.  For  just  as  Savigny 
was  obliged  to  allow  a  fictitious  '  derivative '  possession 
in  the  case  of  the  pledge  holders  and  others  who  on 
principle  would  not  be  possessors,  so  does  Ihering  pray 
in  aid  a  variety  of  special  rules  of  law  to  explain  the 
denial  to  borrowers,  lessees,  and  the  like,  of  the  possessory 
remedies  to  which  in  accordance  with  his  theory  they  are 
'prima  facie  entitled.  The  arguments  of  von  Ihering  will 
have  to  be  reckoned  with  by  any  future  writer  upon  the 
subject,  but  it  would  as  yet  be  premature  to  proclaim  the 


*  Cf . '  by  possession  is  meant  possession  of  that  character  of  which  the 
thing  is  capable.'   Ld.  Advoc.  v.  Young,  12  App.  Ca.  556. 

*  Grund  des  Besitzesschutzes,  p.  45. 

'  lb.  p.  64.    May  it  not  rather  be  compared  to  an  earthwork,  worth 
defending,  whether  or  no  the  fortress  of  ownership  lies  behind  it? 

*  Jena,  1889,  v.  p.  327. 

'  Which  he  describes  as  the  '  Objectivitatstheorie,'  as  opposed  to  the 
*  Subjectivitatstheorie '  of  Savigny  and  his  predecessors. 


POSSESSION,  193 

victory  of  his  views  over  those  of  Savigny  as  to  the  chap.  xi. 
true  meaning  of  the  classical  jurists.  It  is  also  impor- 
tant to  remember  that  a  theory  more  nearly  approaching 
that  of  Savigny  than  that  of  his  critic  has  derived 
new  interest  from  its  long  acceptance  in  the  countries 
ruled  by  modernized  Roman  law  \  and  especially  from 
the  ineffaceable  imprint  which  it  has  left  upon  modern 
codes  ^. 

(2)  The  jurists  of  the  Teutonic  races  seem  never  to  Teutonic 
have  recognised  the  two  grades  of  possession  which  have  ^^**'^- 
given  so  much  trouble  to  the  civilians.  They  granted 
possessory  remedies  without  scruple  to  persons  who  in 
Roman  law  could  never  have  profited  by  the  Interdicts. 
Under  the  Salic  law  the  person  from  whose  custody 
cattle  were  stolen,  irrespectively  of  his  having  any 
further  interest  in  them,  seems  to  have  been  the  only 
person    entitled    to    have    them    restored    to    him ;    and 


'  Cf.  Ihering,  Besitzwille,  pp.  429,  457. 

'E.g.  The  Prussian  Landrecht,  I.  7.  §  i , '  Wer  das  physische  Vermogen 
hat,  iiber  eine  Sache  mit  Ausschliessung  Anderer  zu  verfiigen,  der  hat  sie 
in  seinem  Grewahrsam  und  wird  Inhaber  derselben  genaiint.'  §  3,  'Wer 
aber  eine  Sache,  in  der  Absicht  darliber  fiir  sich  selbst  zu  verfiigen, 
unmittelbar  oder  durch  Andere,  in  seinen  Gewahrsam  nimmt,  der  wird 
Besitzer  der  Sache.'  §§  6,  7,  distinguish  between  the  'imperfect'  and 
the  '  perfect '  Besitzer,  the  latter  being  defined  as  '  welcher  eine  Sache, 
oder  ein  Recht,  als  sein  eigen  besitzt.' 

The  Austrian  Civil  Code,  §  309, '  Wer  eine  Sache  in  seiner  Macht  oder 
Gewahrsam  hat,  heisst  ihr  Inhaber.  Hat  der  Inhaber  einer  Sache  den 
Willen,  sie  als  die  seinige  zu  behalten,  so  ist  er  ihr  Besitzer.' 

The  French  and  Italian  Codes  are  less  clear.  Code  Civil,  §§  2228, 
2234;  Codice  Civile,  §§  685.  21 15.  The  tendency  of  the  Codes,  while 
retaining  in  terms  the  distinction  between  Detention  and  Possession,  is 
to  a.ssimilate  their  legal  results. 

The  explicit  phraseology  of  the  Draft  Civil  Code  for  Germany,  797, 
that  '  Der  Besitz  einer  Sache  wird  erworben  durch  die  Erlangung  der 
thatsachlichen  Gewalt  iiber  die  Sache  (Inhabimg)  in  Verbindung  mit  dem 
Willen  des  Inhabers,  die  Sache  als  die  seinige  zu  haben  (Besitzwille),' 
has  given  place  in  the  Code  as  adopted,  §  854,  to  the  mere  statement  that 
'Der  Besitz  einer  Sache  wird  durch  die  Erlangung  der  thatsachlichen 
Gewalt  iiber  die  Sache  erworben.' 

HOLLAND 


194  PRIVATE   LAW:    RIGHTS   'IN    REM.' 

CHAP.  XI.    Bracton  says  that,  in  suing  for  stolen  goods,  it  makes  no 
difference  whether  the  goods  belonged  to  the  plaintiff  or 
not,  provided  only  they  had  been  in  his  custody  \ 
English  The  theory  of  English  law  at  the  present  day  is  not 

dissimilar.  Possessory  rights  are,  it  is  true,  denied  to 
servants^;  but,  Avith  this  exception,  the  common  law 
ignores  the  distinction  between  Detention  and  Possession, 
granting  possessory  remedies  to  all  persons  in  occupation 
of  land  or  having  the  custody  of  goods.  Previously  to 
the  invention  in  the  thirteenth  century  of  the  writ  'de 
eiectione  firmae,'  the  tenant  of  a  farm  was  regarded  as 
a  mere  bailiff  for  the  landlord,  but  by  means  of  the  writ 
he  acquired  what  in  the  phraseology  of  that  day  could 
be  described  as  a  '  seisin '  of  his  term  ^  and  he  alone  can 
now  bring  trespass  for  interference  with  his  possession  \ 


*  '  Dum  tamen  de  custodia  sua.'  Bract,  fol.  151.  Cited  by  Mr.  Justice 
Holmes,  Am.  Law  Rev.  u.  s. 

^  See  Dicey,  Parties,  pp.  335-358;  Pollock  and  Wright,  Possession, 
p.  59.  Mr.  Justice  Holmes,  Common  Law,  p.  227,  thinks  the  rule  ex- 
plicable only  as  a  survival  from  the  times  when  a  servant  was  a  slave, 
since  '  the  servant  has  as  much  the  intent  to  exclude  the  world  at  large 
as  the  borrower.'  But  see  Pollock  and  Wright,  u.  s.  The  non-attribution 
of  possession  to  servants  is  well  established  in  criminal  law,  e.  g.  if  goods 
are  stolen  from  a  servant  to  whom  they  have  been  entrusted  by  his  master 
they  are  alleged  in  the  indictment  to  be  '  the  property,'  i.  e.  in  the 
pos.session,  of  his  master,  though  some  doubts  upon  this  point  led  to  the 
Statute  21  Hen.  VIII.  c.  7.  (A  new  offence  of  embezzlement  was  created 
by  39  G.  III.  c.  85  to  meet  the  case  of  misappropriation  by  a  servant  of 
goods  delivered  to  him  for  his  master,  but  of  which  the  latter  had  not  yet 
taken  possession);  but  there  are  cases  in  private  law  which  can  with 
difficulty  be  reconciled  with  the  rule  as  now  stated,  and  suggest  the  dis- 
tinction, said  now  to  be  obsolete,  once  drawn  between  sers'ants  at  home 
and  servants  sent  on  distant  errands.  See  Y.  B.  21  H.  VII.  14,  pi.  21, 
cited  in  Holmes,  u.  s.,  p.  226.  Thus  the  master  of  a  fly-boat  hired  at 
weekly  wages  by  a  canal  company  was  allowed  to  bring  trespjiss  for  the 
cutting  of  a  tow-rope,  the  property  of  the  company.  Moore  v.  Robinson, 
2  B.  &  Ad.  817.  Persons,  such  as  guests  at  an  inn,  who  have  there  the 
use  of  plate  and  other  objects,  as  bare  licencees  without  bailment,  have 
no  possession.     Holmes,  u.  s.,  p.  226. 

'  Bracton,  fol.  220.  See  Digby,  History  of  the  Law  of  Real  Property, 
ed.  4,  p.  175;  Maitland,  on  the  Seisin  of  Chattels,  L.  Q.  R.  i.  p.  333. 

*  Dicey,  Parties,  p.  334. 


POSSESSION.  195 

A  similar  right  in  the  case  of  bailees  of  goods  seems  to  chap.  xi. 
have  a  much  older  pedigree \  'In  all  these  instances,' 
says  Blacks  tone,  'there  is  a  special  qualified  property 
transferred  from  the  bailor  to  the  bailee,  together  with 
the  possession.  And  on  account  of  this  qualified  property 
of  the  bailee,  he  may,  .  .  .  maintain  an  action  against 
such  as  injure  or  take  away  these  chattels.  The  tailor, 
the  carrier,  the  innkeeper,  the  agisting  farmer,  the  pawn- 
broker, the  distreinor,  and  the  general  bailee,  may  all  of 
them  vindicate  hi  their  own  right  this  their  possessory 
interest  ^' 

Alike  in  Roman  and  in  the  common  law,  a  mere  finder.  Wrongful 
or  even  a  wrongful  taker,  has  a  possession  which  will  be  ^^^' 
protected  against  a  stranger;    nor  will  such   stranger  be 
allowed    to    allege  a   superior   ius    tertii^  unless    he    can 
show  that    he  was    acting  under  the  authority  of    the 
person  having  such  a  right  ^ 

After  being  a  topic  of  controversy  between  the  Proculian  Possessio 
and  Sabinian  schools,  it  was  finally  determined  in  Roman  ^  """™' 
law  that  only  one  person   can    possess   the  same  object 
at    the    same    time,  '  non    magis    enim    eadem    possessio 


•  Holmes,  Common  Law,  p.  166,  citing  Laband,  Vermogensrechtliche 
Klagen,  §  16,  and  Heusler,  Gewere,  487,  492. 

*  2  Comm.  453.  He  continues,  '  For  being  responsible  to  the  bailor,  or 
if  the  goods  are  lost  or  damaged  by  his  ^^nlful  default  or  gross  negligence, 
or  if  he  do  not  deliver  up  the  chattels  on  lawful  demand,  it  is  therefore 
reasonable  that  he  should  have  a  right  of  action  against  all  other  persons 
who  may  have  purloined  or  injured  them ;  that  he  may  always  be  ready 
to  answer  the  call  of  the  bailor.'  This  reasoning,  though  found  also  in 
Beaumanoir,  xxx.  i,  and  in  Y.  B.  11  H.  IV,  seems  to  be  erroneous.  See 
Holmes,  Common  Law,  pp.  1 67,  1 70.  It  is  probably  derived  from  a  mis- 
understanding of  the  remedies  given  in  Roman  law  to  certain  bailees  for 
the  protection  of  interests  other  than  those  resulting  from  bare  jwssession. 
Cf.  Inst.  iv.  I.  14  and  17;  Dig.  xlvii.  2.  46.  The  right  of  the  bailee  was 
held  to  be  irrespective  of  his  liability  to  the  bailor  in  The  Winkfield 
[1902]  P.  42. 

^  Dig.  xHii.  17.  2.  Armory  v.  Delamirie,  i  Sm.  L.  C.  301;  Buckley  v. 
Gross,  32  L.  J.  Q.  B.  131;  Dicey,  Parties,  pp.  334,  354,  356;  Pollock  and 
Wright,  pp.  49,  148. 

03 


196 


PRIVATE   LAW:    RIGHTS   'IN    REM.' 


CHAP.  XI.  apud  duos  esse  potest,  quam  ut  tu  stare  videaris  in  eo 
loco  in  quo  ego  sto,  vel  in  quo  loco  ego  sedeo  tu  sedere 
videaris  \'  The  strictness  of  this  rule  seems  not  to  have 
been  followed  in  the  indigenous  law  of  Germany  ^  and 
was  departed  from  at  an  early  date  in  the  law  of  England. 
When  the  tenant  farmer  acquired  the  writ  of  ejectment, 
his  lord  none  the  less  retained  his  possessory  remedy  by 
Assize  of  novel  disseisin ' ;  and  in  the  time  of  Edward  III, 
we  find  that  bailors  had  gained  the  right  to  bring  tres- 
pass concurrently  with  their  bailees  against  a  third  party  *. 
In  modern  times,  at  any  rate,  this  right  is  restricted,  as 
would  seem  more  in  accordance  with  principle,  to  the 
case  of  simple  bailments,  i.  e.  those  in  which  the  bailor  is 
at  liberty  to  resume  possession  at  any  moment  ^  When 
during  the  bailment  the  right  of  the  bailee  is  good  even 
against  the  bailor,  the  former  can  alone  sue  for  any 
interference  with  his  possession  ^ 


Reasons 
for  pro- 
tecting 
possss- 
sion. 


More  than  one  motive  may  have  induced  the  law  to 
give  protection  to  possession.  The  predominant  motive 
was  probably  a  regard  for  the  preservation  of  the  peace. 


*  Dig.  xli.  2.  3.  5;  cf.  xliii.  26.  15.  4.  The  possession  by  several  of 
different  parts  or  shares  of  a  thing  is  a  different  question.  Savigny ,  Besitz, 
§  11;  Puchta,  Inst.  ii.  p.  564. 

^  See  authorities  cited  by  Prof.  Maitland,  L.  Q.  R.  i.  p.  344,  and  the 
German  Civil  Code,  868. 

'  '  Poterit  enim  quilibet  illorum  sine  praeiudicio  alterius  in  seisina  esse 
eiusdem  tenementi,  unus  ut  de  termino,  et  alius  ut  de  feudo  vel  libero 
tenemento.'  Bracton,  fol.  220.  See  Maitland,  L.  Q.  R.  i.  p.  341.  But 
note  that  the  landlord  cannot  bring  trespass  or  ejectment  during  the 
continuance  of  the  term.    Dicey,  Parties,  pp.  337,  489. 

*  Y.  B.  48  Ed.  III.  20,  pi.  8,  22  Ed.  IV.  5,  pi.  16,  cited  in  Holmes, 
Common  Law,  p.  170.  He  thinks  this  an  anomaly,  p.  175.  The  reason 
usually  given  for  it  is  that  'a  right  of  immediate  possession  witliout 
possession  is  sufficient.'  Cf.  Smith  v.  Milles,  i  T.  R.  480.  So  the  purchaser 
of  goods  may  bring  trespass  before  delivery.  Dicey,  p.  348;  aliier  as  to 
a  purchaser  of  land  before  entry,  Pollock  and  Wright,  p.  28. 

*  Nicholls  V.  Bastard,  2  C.  M.  &  R.  659;  Dicey,  Parties,  p.  345. 

*  Gordon  v.  Harper,  7  T.  R.  9:  'It  cannot  be  that  two  men  can  be 
entitled  at  the  same  time  to  maintain  an  action  of  trover  for  the  same 
goods.'   Lord  v.  Price,  L.  R.  9  Ex.  54. 


POSSESSION.  197 

*■  The  ground  of  this  protection,'  says  Savigny,  '  and  of  chap.  xi. 
this  condition  similar  to  a  right,  has  to  be  ascertained. 
Now  this  ground  lies  in  the  connection  between  the  above 
condition  of  fact  and  the  party  possessing,  the  inviolability 
of  whose  person  extends  to  those  sorts  of  disturbance  by 
which  the  person  might  at  the  same  time  be  interfered 
with.  The  case  occurs  when  the  violence  offered  to  the 
person  disturbs  or  puts  an  end '  to  possession.  An  in- 
dependent right  is  not,  in  this  case,  violated,  but  some 
change  is  effected  in  the  condition  of  the  person  to 
his  prejudice;  and  if  the  injury,  which  consists  in  the 
violence  against  the  person,  is  to  be  wholly  effaced  in 
all  its  consequences,  this  can  only  be  effected  by  the 
restoration  or  protection  of  the  statits  quo,  to  which 
the  violence  extended  itself  \'  The  same  view  is  also  to 
be  found,  where  anything  so  abstract  would  scarcely  be 
expected,  in  a  volume  of  Meeson  and  Welsby's  Reports. 
'These  rights  of  action,'  said  the  Court  of  Exchequer 
Chamber,  *are  given  in  respect  of  the  immediate  and 
present  violation  of  possession,  independently  of  rights 
of  property.  They  are  an  extension  of  that  protection 
which  the  law  throws  around  the  person^.' 

The  suggestion  that  possession  was  protected  because 
possessors  are  in  most  cases  rightful  owners  ^  is  hardly 
in  accordance  with  legal  history. 

As  to  the  place  which  the  doctrine  of  possession  should  Place  of 

occupy  in  a  body  of    law,   Savigny  is   of    opmion    that,  [^^j^'^^ 

since  it  only  comes  in  question    as  a  condition   to    theF^^'P^ 
•'  ^  luns. 

granting  of  Interdicts,  it  belongs  to  the  department  of 

*  Savigny,  §  6,  Perry's  Translation  (1843). 

'  Rogers  v.  Spence,  13  M.  &  W.  581  (1844). 

'  Ihering,  Ueber  den  Grund  des  Besitzesschutzes,  ed.  2,  p.  45.  At  p.  4, 
he  gives  an  exhaustive  classification  of  the  theories  on  this  point. 
According  to  his  own  opinion,  Possession  Is  'eine  dera  Eigenthiimer 
zugedachte  Beweiserleichterung,  die  aber  nothwendigerweise  auch  dem 
Nichteigenthiimer  zu  Gute  kommt,'  p.  45. 


198 


PRIVATE   LAW:    RIGHTS    'IN    REM.' 


CHAP.  XI.  '  obligationes  ex  delicto.'  By  what  has  preceded,  it  will 
have  sufficiently  appeared  that  we  agree  rather  with 
those  who,  like  Alciatus,  Halm,  and  Gans,  class  possession 
among  the  '  iura  in  re.' 

Orbit.  The  orbit  of  the  right  may  be  inferred  from  a  list  of 

the  acts  which  are   recognised  as   infringing  it.    Among 
the  acts    so    recognised    in    English   law  are    those  long 
,  known    as  'trespass'  and  'conversion.'     A  'trespass    to 

goods'  would  consist  in  their  removal  or  injury,  but 
might  be  justified,  as  done  in  the  exercise  of  a  rightful 
'distress,'  or  in  self-defence;  while  goods  would  be  said 
to  be  'converted'  by  any  one  who  wrongfully  assumed 
to  act  as  their  owner. 


Com- 
mence- 
ment. 


The  '  ius  possessionis '  comes  into  existence  on  the  occur- 
rence of  such  a  combination  of  control  and  intention  as 
is  demanded  by  a  given  system  of  law. 

The  corporeal  and  mental  elements  of  the  act  of  acqui- 
sition may  be  separated,  as  where  the  former  is  exercised 
by  an  agent  and  the  latter  by  his  principal ;  or  both  may 
be  exercised  by  an  agent,  who  has  general  authority 
from,  or  whose  acts  are  subsequently  ratified  by,  his 
principal '. 


Termina- 
tion. 


The  right  of  possession  may  be  of  course  extinguished 
by  an  express  abandonment  of  the  object,  but  the  same 
effect  may  be  produced  by  tacit  relaxation  of  corporeal 
control  or  of  intention.  The  cases  in  which  this  occurs 
are  defined  by  different  rules  in  different  systems  of  law  ^ 


'  Savigny,  §  26. 

*  Thus  Roman  law,  on  grounds  of  policy,  declined  to  treat  the  possession 
of  the  absentee  owner  of  a  farm  as  ousted  by  wrongful  occupation  by  an 
intruder.  It  was  a  legal  fiction  that  the  possessor  in  such  a  case,  tliougli 
dispossessed  in  point  of  fact,  was  not  to  be  regarded  as  dispossessed  till  he 
had  received  notice  of  what  had  occurred.  Dig.  xli.  2.  46;  ib.  3.  7  and  8; 
Savigny,  Besitz,  §  33. 


OWNERSHIP.  199 

The  doctrine  of  possession  has  been  extended,  under  chap.  xi. 
the  name  of  '  quasi-possession,'  or  of  '  possessio  iuris,'  to  the  Q^^i-po^- 
control  which  may  be  exercised  over  advantages,  short  of 
ownership,  which  may  be  derived  from  objects.  A  right 
of  way,  an  advowson  or  perpetual  right  of  appointment 
to  a  benefice,  and  similar  rights,  the  nature  of  which  will 
shortly  have  to  be  explained,  are  susceptible  of  a  quasi- 
possession,  the  rules  for  which  are  analogous  to  those 
which  govern  possession  properly  so  called. 

It  is  a  great  advance  in  civilisation  when  law  throws  Owner- 
around  the  mere  fact  of  possession  that  protection  which  ^  'P" 
the  possessor  could  previously  have  won  for  it  only  by 
his  own  right  hand.  It  is  a  still  further  advance  when 
law  gives  to  a  man  that  far  ampler  measure  of  right 
over  an  object,  quite  irrespectively  of  his  having  any 
actual,  or  even  constructive,  control  over  it,  which  is 
known  as  '  Ownership  V 

The  higher  is  no  doubt  a  development  of  the  lower  right.  Defini- 
'  Dominium  rerum  ex  naturali  possessione  coepisse  Nerva  *°°^' 
Alius  ait  ^.'  It  is  usually  defined  as  a  plenary  control  over 
an  object.  '  Das  Eigenthum  ist  eine  totale  Herrschaft  fiber 
eine  Sache  ^'  '  La  propriete  est  le  pouvoir  juridique  plein 
et  entier  d'une  personne  sur  une  chose  corporelle ' ;  '  Le 
pouvoir  de  droit  d'une  personne  sur  une  chose  d'apres  tons 
les  buts  rationnels  d'utilite  possible,  inherents  a  sa  nature  \' 

The  right  of  ownership  is,  however,  unlimited  only  m  How 
comparison  witl^  other  rights  over  objects.    In  accordance 
with  the  maxim  '  sic  utere  tuo  ut  alienum  non  laedas,'  it 
must  always  be  enjoyed  in  such  a  way  as  not  to  interfere 
with  the  rights  of  others,  and  is  therefore  defined  in  the 

'  So  that  Ulpian  goes  so  far  as  to  say :  '  Nihil  commune  habet  possessio 
cum  proprietate.'    Dig.  xli.  2.  12.  i. 

2  Dig.  xli.  2.  I.  I.   Cf.  Cic.  De  Off.  i.  7. 

'  Puchta,  Inst.  ii.  p.  581. 

*  Alirens,  Droit  Naturel,  ii.  p.  143;  cf.  '  Dominus  incipit  plenam  habere 
in  ri'  potestatem,'    Inst.  ii.  4.  4. 


200 


PRIVATE    LAW:    RIGHTS   'IN   REM.' 


Compo- 
nent 
rights. 


French  Code  as  'le  droit  de  jouir  et  disposer  des  choses 
de  la  maniere  la  plus  absolue,  pourvu  qu'on  n'en  fasse 
pas  un  usage  prohibe  par  les  lois  ou  par  les  reglements  \' 
It  may  also,  as  we  shall  see  hereafter,  continue  to  subsist 
although  stripped  of  almost  every  attribute  which  makes 
it  valuable,  in  which  condition  it  is  described  in  Roman 
law  as  'nuda  proprietas.'  A  really  satisfactory  definition 
of  a  right  thus  wide,  yet  necessarily  limited  in  several 
respects  and  conceivably  limited  in  many  more,  has  per- 
haps never  been  suggested.  It  is  dijficult  to  do  more 
than  to  describe  it,  with  Austin,  as  a  right  'over  a  deter- 
minate thing,  indefinite  in  point  of  user,  unrestricted  in 
point  of  disposition,  and  unlimited  in  point  of  duration  ^.' 

Various  attempts  have  been  made  to  enumerate  the 
attributes  or  powers  of  an  owner.  He  is  said  to  have 
rights  'utendi,'  'fruendi,'  'abutendi,'  '  fructus  percipiendi,' 
'  possidendi,'  'alienandi,'  and  *  vindicandi.'  But  what  has 
to  be  said  with  reference  to  the  orbit,  or  contents,  of  the 
right  of  ownership  may  be  conveniently  arranged  under 
the  three  heads  of  possession,  enjoyment,  and  disposition. 


Posses- 


Enjoy- 
ment. 


1.  Of  the  right  to  possess,  little  more  need  be  said  than 
that  it  includes  the  '  ius  vindicandi,'  and  that  it  is  inherent 
in  ownership  unless  expressly  severed  from  it,  as  is  the  case 
when  the  owner  has  let,  lent,  or  mortgaged  his  property. 

2.  The  right  of  enjoyment  implies  rights  of  user,  and 
of  acquiring  the  fruits  or  increase  of  the  thing,  as  timber, 
the  young  of  cattle,  or  soil  added  to  an  estate  by  alluvion. 
The  right  is  limited  only  by  the  rights  of  the  State  or 
of  other  individuals  ^ 


'  Art.  544.  According  to  the  new  Civil  Code  for  Germany,  903,  'Der 
Eigenthumer  einer  Sache  kann,  soweit  nicht  das  Gesetz  oder  Rechte 
Dritter  entgegenstelieii,  mit  der  Sache  nach  Belieben  verfahren  imd 
Andere  von  jedtr  Einwirkung  ausschliessen.' 

^  Jurisprudence,  ii.  p.  477;  cf.  iii.  p.  2. 

^  The  right  of  freely  using  one's  ow^l  land  although  to  the  detriment  of 
one's  neighbours,  is  very  amply  recognised  by  English  law  (see  Chasemore 


OWNERSHIP.  20I 

The  State  may  of  course,  as  is  sometimes  said  by  virtue    chap. 

of    its  'dominium    eminens,'  take    such  portions    of    the 

produce    of    property,  or  even    of    property  itself,  as    it 

may  think  fit ;  or  it  may  authorize   undertakings  in  the 

neighbourhood,  whereby  the  value  of  the  property  may 

be  diminished  without    compensation  \     The    State    can 

also  prohibit  any  particular  use  of  the  property,  e.  g.  the 

growth  of  tobacco  upon  land  in  England  and  Ireland  ^ 

or  the    carrying  on  of    noxious    trades  in    to^vns.     The 

rights  of  the  owner  may  also  be  limited  by  those  of  his 

co-owners,  if  the  property  is  held  jointly;   or  by  those 

of  strangers.    The  owner  of  land,  for  instance,  may  be 

restrained  in  the  interest  of  neighbouring  owners '  from 

dealing  with  it  entirely  at  his  pleasure;    and  this  either 

in  consequence  of  some  exceptional  advantage,  such  as 

a  right  of  way,  which  may  have    been    conferred  upon 

another;  or  in  consequence  of  the  ordinary,  or,  as  it  is 

sometimes  called,  'natural'  rights  of  his  neighbours  not 

to  have  their  land  deprived  of  its  accustomed    support 

from  the  land  adjacent,  to  receive  the  water  of  a  stream, 

or  the  hke. 

3.  The  right  of  disposition  carries  with  it  the  right  of  Disposi- 
tion. 

V.  Richards,  7  H.  L.  C.  349) ;  but  by  Roman  law,  apparently,  only '  si  non 
animo  vicino  nocendi,  sed  suum  agrum  meliorem  faciendi'  (D.  xxxix.  3. 
I.  12).  Cf.  Code  Civil,  art.  642  (new),  and  the  Biirgerliches  Gesetzbuch, 
art.  226.  So  Scots  law  prohibits  what  is  done  in  aemulationem  vidni. 
Ersk.  Inst.  ii.  i.  2;  but  as  to  the  limited  application  of  this  doctrine,  see 
Mayor  of  Bradford  v.  Pickles  [1895]  A.  C.  at  p.  587.  Cf.  Pollock,  Torts, 
ed.  vii.  p.  155;  Journal  Comp.  Leg.  N.  S.  vi.  p.  76  n. 

'  E.  g.  by  vibration  caused  by  trains  passing  over  a  railway  made  in 
pursuance  of  an  Act  of  Parliament,  Hammersmith  Railway  Company 
r.  Brand,  L.  R.  4  H.  L.  171.  So  also  it  was  held  in  Vaughan  v.  Taff  Vale 
Ry.  C0.5H.&N.  679, as  to  sparks  from  an  engine;  but  comjjensation  for 
damage  thus  caused  to  agricultural  land  or  crops  may  now  be  obtained 
under  'The  Railway  Fires  Act,'  1905. 

'  By  1 2  Car.  II.  3.  34.  On  the  principle  that  when  private  property  is 
affected  with  a  public  interest  it  ceases  to  be  iuris  privati,  see  Lord  Holt, 
De  portibus  maris,  i  Harg.  Law  Tracts;  and  on  the  recent  application  of 
this  principle  in  the  grain  'elevator'  cases,  see  Munn  v.  Illinois,  4  Otto, 
113 


202  PRIVATE   LAW:    RIGHTS   'IN    REM.' 

CHAP.  XI.  alteration  or  destruction,  and  also  the  right  of  alienation. 
Some  objects  are  of  course  practically  indestructible.  The 
alienation  may  either  be  total,  when  the  right  itself,  or 
partial,  when  a  fraction  of  it  only,  is  transferred.  Alienation 
for  certain  purposes  is  sometimes  forbidden,  e.  g.  in  fraud 
of  creditors,  or  in  mortmain. 

Objects  Ownership  is  exercised,  in  its  primary  and  fullest  sense, 

ship.  over  physical    objects    only.      It  is   also    exercised,  in  a 

secondary  and  conventional  sense,  over  certain  collections  of 
rights  which  it  is  convenient  to  treat  upon  the  analogy 
of  physical  objects.  In  the  primary  sense  of  the  term, 
a  man  may  be  owner  of  a  house,  in  the  secondary  sense 
he  may  be  owner  of  a  patent  for  an  invention.  The  object 
owned  is  in  either  case  described  as  'property,'  which  is 
defined  by  Mirabeau  as  signifying  'un  avantage  confere 
par  les  conventions  sociales  \'    The  terms  '  ownership '  and 

*  property'  are  sometimes  also  used  in  a  third,  and  still 
looser  sense.  The  sum-total  of  a  man's  fortune,  including 
not  only  the  objects  of  which  he  is  owner,  but  also  the 
value  of  any  claims  which  he  may  have  against  other 
persons,  after  deducting  the  amount  of  any  claims  which 
might  be  made  good  against  himself,  is  described  as  his 

*  property,'  and  he  is  said  to  'own'  it^. 


*  Hist.  Parlementaire  de  la  Revolution  Fran^aise,  t.  ix.  p.  290. 

*  The  Roman  use  of  the  term '  res '  was  equally  ambiguous.  Sometimes 
it  is  the  thing  itself  (res  corporalis),  sometimes  a  right  over  a  thing,  or 
even  to  the  performance  of  an  act  (res  incorporalis).  Cf.  supra,  p.  99. 
With  the  use  of  the  term,  as  covering  a  mere  right  to  performance,  cf .  the 
Ck)de  Civil  (Art.  529):  'sont  meubles,  par  la  determination  de  la  loi,  Ics 
obligations  et  actions  qui  ont  pour  objet  des  sommes  exigibles,'  &c.;  and 
the  definition  of  'Property'  in  44  &  45  Vict.  c.  41.  §  i,  and  in  45  &  46 
Vict.  c.  39.  §  2  (the  Conveyancing  Acts,  1881,  1882),  as  including  'any 
debt,  and  any  thing  in  action,  and  any  other  right  or  interest.'  Cf.  also 
the  Bankruptcy  Act,  1883, 46  &  47  Vict.  c.  52.  §  168  (i).  On  the  question 
whether  shares  in  a  Company  are  'things  in  action,'  under  the  Bank- 
ruptcy Act,  see  Colonial  Bank  i\  Whinney,  1 1  App.  Ca.  426.  A  power  of 
appointment  is  not  property,  ex  parte  Gilchrist,  1 7  Q.  B.  D.  167  and  521. 


TANGIBLE   OBJECTS.  203 

It  will  be  desirable  to  discuss  each  of  these  kinds  of    chap.  xi. 
'  property '  separately. 

1.  It  is  not  every  physical  object  that  will  answer  the  Tangible 
description  of  property,  as  being  '  un  bien  materiel  sujet 
au  pouvoir  immediat  d'une  personne  \'  Some  things  are 
in  their  nature  incapable  of  appropriation.  Air  and,  in 
most  cases,  water  ^  are  for  the  free  use  of  all  mankind. 
Objects  which  are  capable  of  becoming  property  are 
divisible  upon  various  principles,  as  has  been  already 
explained  ^. 

The  right  of  the  owner  of  a  physical  object  is  of  course  Orbit, 
modified  by  the  character  of  the  object.  His  right  is  in 
general  that  the  object  shall  neither  be  taken  away  from 
him,  nor  impaired  in  value,  nor  shall  his  title  to  it  be 
weakened.  Among  the  acts  by  which  his  right  is  infringed 
are  those  known  to  EngUsh  law  as  conversion,  detinue, 
trespass,  slander  of  title,  and  nuisance. 


2.  We  have  already  mentioned  that  the  idea  of  owner-  Intangible 
ship  has  been  so  far  extended  as  to  make  it  applicable  to 
certain  closely  coherent  masses  of  rights ;  which  are  thus, 
by  a  legal  fiction,  treated,  for  certain  purposes,  as  if  they 
were  tangible  objects  \ 

'  Ahrens,  Cours,  ii.  p.  117. 

*  But  see  Ormerod  v.  Todmorden  Mill  Co.,  11  Q.  B.  Div.  155. 
^  Supra,  p.  99. 

*  '  The  notion  that  nothing  is  property  which  cannot  be  ear-marked  and 
recovered  in  detinue  or  trover,  may  be  true  in  an  early  stage  of  society, 
when  property  is  in  its  simple  form,  and  the  remedies  for  violation  of  it 
are  also  simple,  but  it  is  not  true  in  a  more  civilised  state,  when  the 
relations  of  life  and  the  interests  arising  therefrom  are  complicated.' 
Erie  J.,  in  Jeffreys  v.  Boosey,  4  H.  L.  Ca.  815.  But  see  contra  Pollock 
C.  B.  in  the  same  case,  and  Windscheid,  Pand.  §  168.  On  'goodwill,' as 
a  genus,  of  which  patents,  &c.  are  species,  see  J.  F.  Iselin,  in  Law  Quarterly 
Review,  xiii.  p.  1 56.  A  man  has  no  property  in  his  name,  see  Du  Boulay 
V.  Du  Boulay,  L.  R.  2  P.  C.  430;  Dockrell  v.  Dougall,  1 5  Times  Rep.  333; 
nor  is  any  right  of  a  peer  to  that  incorporeal  hereditament,  his  dignity, 
infringed  by  tlie  user  of  his  title  by  his  divorced  wife,  now  married  to 
a  Commoner.   Cowley  r.  Cowley  [iqot]  A.  C.  450. 


204 


PRIVATE    LAW:    RIGHTS    'IN    REM. 


CHAP.  XI. 

Patents. 


Copy- 
right. 


Trade- 
marks. 


In  modern  times  the  inventor  of  a  new  process  obtains 
from  the  State,  by  way  of  recompense  for  the  benefit  he 
has  conferred  upon  society,  and  in  order  to  encourage 
others  to  follow  his  example,  not  only  an  exclusive 
privilege  of  using  the  new  process  for  a  fixed  term  of 
years,  but  also  the  right  of  letting  or  selling  his  privilege 
to  another.  Such  an  indulgence  is  called  a  patent-right, 
and  a  very  similar  favour,  known  as  copy-right,  is  granted 
to  the  authors  of  books,  and  to  painters,  engravers,  and 
sculptors,  in  the  productions  of  their  genius  \  It  has  been 
a  somewhat  vexed  question  whether  a  '  trade-mark '  is  to 
be  added  to  the  list  of  intangible  objects  of  ownership. 
It  was  at  any  rate  so  treated  in  a  series  of  judgments 
by  Lord  Westbury,  which,  it  seems,  are  still  good  law. 
He  says,  for  instance, '  Imposition  on  the  public  is  indeed 
necessary  for  the  plaintiff's  title,  but  in  this  way  only, 
that  it  is  the  test  of  the  invasion  by  the  defendant  of  the 
plaintiff's  right  of  property^.'  It  is  also  so  described 
throughout  the  'Trade  Marks  Act,'  1905  \  as  it  had  been  in 
the  French  law  of  1857  relating  to 'Marques  de  fabrique 
et  de  commerce.'  The  extension  of  the  idea  of  ownership 
to  these  three  rights  is  of  comparatively  recent  date. 
Patent-right  in  England  is  older  than  the  Statute  of 
Monopolies,  2 1    lac.  I.  c.  3  ^   and  copy-right  is  obscurely 


*  On  the  copyright  retained  in  a  letter  by  the  writer  of  it,  see  Pope  v. 
Curll,  2  Atk.  342;  Oliver  v.  Oliver,  1 1  C.  B.  N.  S.  139;  Macmillan  v.  Dent, 
[1906]  I  Ch.  loi.  A  painter's  copyright  in  his  pictures,  under  25  &  26 
Vict.  c.  68,  is  not  infringed  by  the  exhibition  of  tableaux  vivants  reproducing 
their  effect,  Hanfstaengl  v.  Empire  Co.  [1894]  2  Ch  i ;  nor  by  the  publi- 
cation of  sketches  of  such  iaifeaux,  Hanfstaengl  v.  Baines  [1895]  A.  C.  20. 

*  Hall  V.  Barrows,  30  L.  J.  Ch.  204.  Cf.  Oakey  v.  Dalton,  35  Ch.  D.  700.. 

*  5  Ed.  VII.  c.  15,  consolidating  the  law  of  the  subject.  So  too  in  the, 
now  repealed,  'Trade  Marks  Registration  Act,  1875,'  and  in  the  relevant 
sections,  now  also  repealed,  of  the  '  Patents,  Designs,  and  Trademarks 
Act,  1883.'  On  such  right  as  a  trader  may  have  to  an  exclusive  use  of 
his  name,  see  Burgess  v.  Burgess,  3  D.  M.  G.  896. 

*  On  letters  patent  by  Royal  Prerogative  in  England,  see  an  Art.  in 
Law  Quarterly  Review,  xiL  p.  141.   On  the  construction  of  certain  letters 


INTANGIBLE   PROPERTY.  205 

traceable  previously  to  the  Act  of  8  Anne,  c.   19  \  but    chap.  xi. 
trade-marks  were  first  protected  in  the  nineteenth  century. 
Violations  of  this  sort  of  property  are  described  in  EngUsh 
law  as  '  infringements.' 

With  such  intangible  property  should  probably  also  be  Fran- 
classified  those  royal  privileges  subsisting  in  the  hands  of  ^  ^^' 
a  subject  which  are  known  in  English  law  as  '  franchises,' 
such  as  the    right    to    have  a  fair  or  market,  a  forest, 
free-warren  or  free-fishery. 

The  once  well-known  privileges  described  in  German 
law  as  '  Bannrechte,'  e.  g.  of  having  all  the  corn  of  the 
neighbourhood  brought  to  one's  mill  to  be  ground, '  Miihlen- 
zwang,'  all  the  bread  brought  to  one's  oven  to  be  baked, 
'  Backofenzwang,'  and  the  like,  belong  to  the  same 
category. 

3.  A  still  bolder  fiction  than  those  just  considered  was  Bonorum 
familiar  to  the  Romans.  All  that  a  given  individual  can^^^^gg 
be  said  to  be  worth,  reckoning  together  not  only  all  his 
rights  of  ownership,  but  also  the  value  of  any  claims 
which  he  may  have  against  others  ('bona  activa'),  but 
deducting  the  amount  of  any  claims  which  others  may 
have  against  him  ('bona  passiva'),  is  sometimes  said  to 


patent  granted  by  the  States  General  in  1 630,  see  The  Opinions  of  Grotius, 
De  Bruyn,  p.  115. 

*  On  the  curious  question  of  a  copyright  at  common  law,  see  the 
case  of  Jeffreys  v.  Boosey,  u.  s.,  which  decided,  overruling  Donaldson 
V.  Beckett,  2  Bro.  P.  C.  129,  against  a  considerable  weight  of  judicial 
opinion,  unfavourably  to  the  existence  of  any  such  right,  at  any  rate 
since  the  Statute  of  Anne.  Cf.  the  Report  of  the  Royal  Commission  on 
Copyright  of  1878,  embodying  a  draft  Digest  of  the  existing  law  upon 
the  subject,  by  Sir  J.  F.  Stephen.  On  the  question  of  a  common  law 
copyright  in  an  orally  delivered  lecture,  see  Abernethy  v.  Hutchinson, 
I  Hall  &  Tw.  28;  Nichols  v.  Pitman,  26  Ch.  D.  374;  and  Sime  v.  Caird, 
1 2  App.  Ca.  326,  in  which  the  House  of  Lords,  on  appeal  from  the  Court 
of  Session,  held  that  the  delivery  of  a  University  lecture  does  not  divest 
the  author  of  his  copyright  in  it.  Cf.  Dalloz,  t.  xl.  P.  2.  p.  187.  On 
copyright  in  a  report  of  a  public  speech,  see  Walter  v.  Lane  [1900]  2  A.  C. 
539- 


2o6 


PRIVATE   LAW:    RIGHTS   'IN    REM.' 


CHAP.  XI.  be  his  '  property,' and  he  is  said  to  be  the 'owner 'of  tlie 
whole  complex  mass  of  rights  '  in  rem '  and  '  in  personam,' 
less  deductions  \ 

Such  a  totahty  of  property  has  been  described  by  the 
phrases  '  bona,'  '  patrunoine,'  '  avoir,' '  estate,' '  assets,'  '  Ver- 
mogen.'  The  last-mentioned  term  has  been  defined  as 
'  alles  was  mis  zusteht  oder  gehbrt  ^ ' ;  also  as  '  der  Inbegriff 
der  Kechte  einer  Person,  die  einen  Sachwerth  haben,  oder 
deren  Werth  sich  in  Geld  anschlagen  lasst  V  Such  a  mass 
of  property,  should  its  subject  die,  becomes  a  '  hereditas.' 


Com- 
mence- 
ment of 
the  right, 


Although  some  few  modes  of  acquisition,  or  'titles,' 
are  applicable  to  all  three  classes  of  property,  each  class 
has  also  a  set  of  modes  of  acquisition  appropriate  to  itself. 
It  may  be  convenient  to  mention  the  special  modes  first, 
those,  namely,  which  are  respectively  appHcable  to  the 
acquisition  of  physical  objects,  of  groups  of  rights  treated 
as  if  they  were  physical  objects,  and  of  complex  masses 
of  rights  and  duties. 


over 

physical 

objects. 


Physical  objects, '  res  corporales,' '  res  quae  tangi  possunt,' 
are  capable  of  being  acquired  in  a  variety  of  ways,  which 
are  either  'original'  or  'derivative.' 


*  'La  notion  de  la  propri^t^  est  alors  identifi^  avec  celle  de  I'avoir, 
quoiqu'il  faille  toujours  distinguer  ies  biens  materiels  qui  sont  immediate- 
ment  dans  notre  pouvoir  de  ceux  par  rapport  auxqucls  nous  avons  dcs 
droits  a  faire  valoir.'  Ahrens,  ii.  121.  '  Bona  intelliguntur  cuiusque  quae 
deducto  aere  alieno  sup>ersunt.'  Dig.  1.  39.  i.  '  Bonorum  appellatio,  sicut 
hereditatis,  universitatem  quandam  ac  ius  successionis  et  non  singulas 
res  demonstrate  Dig.  1.  1 6.  208.  '  Bona  autem  hie,  ut  plerumque  solemas 
dicere,  ita  accipienda  sunt,  universitatis  cuiusque  successionem,  qua 
succeditur  in  ius  demortui,  suscipiturque  eius  rei  commodum  et  in- 
commodum:  nam  sive  solvendo  sunt  bona,  sive  non  sunt,  sive  damnum 
habent,  sive  lucrum,  sive  in  corporibus  sunt  sive  in  actionibus,  in  hoc 
loco  proprie  bona  appellabuntur.'  Dig.  xxxvii.  i.  3  pr.;  cl.  1.  16.  49. 
So  a  contractual  right  to  the  transfer  of  suitable  land  in  Roumania  has 
been  held  to  be  '  property.'  Danubian  Sugar  Factories  v.  Inl.  Rev. 
Commissioners  [1901]  i  Q.  B.,  C.  A.,  245. 

*  Roder,  ii.  p.  239.  *  Puchta,  ii.  p.  302;  cf.  578. 


ORIGINAL   ACQUISITION.  207 

1.  Original  acquisition  takes  place  either  with  or  with-    chap.  xi. 

out  an  act  of  possession.  Original 

acquisi- 
I.  With  such  an  act,  the  right  is  gained  by:  tion. 

(a)  '  Occupatio  ' ;  the  taking  of  what  previously  belonged  With  pos- 
to  no  one:  'quod  enim  nuUius  est,  id  ratione  naturali ^^^'°°" 
occupanti  conceditur  *.'  Among  '  res  nullius '  are  wild 
animals ;  derelicts,  which  on  abandonment  cease  to  belong 
to  their  former  owners ;  the  property  of  enemies ;  and  a 
'  thesaurus,'  i.  e. '  vetus  quaedam  depositio  pecuniae,  cuius 
non  exstat  memoria,  ut  iam  dominum  non  habeat^.'  It 
must  be  remembered  that  the  right  of  the  finder  of  such 
objects  is  by  no  means  recognised  as  unqualified.  Most 
systems  of  law  hold  that  property  taken  from  an  enemy 
vests  primarily  in  the  nation,  'bello  parta  cedunt  rei- 
publicae,'  a  rule  which  is  the  foundation  of  the  law  of 
booty  and  prize ;  and  the  right  to  capture  animals  '  ferae 
naturae,'  or  to  appropriate  a  treasure-trove,  is  usually 
qualified  by  the  rights  of  landowners  and  of  the  State  itself. 

(y8)  '  Speciflcatio ' ;  i.  e.  the  working  up  of  materials 
belonging  to  another  into  a  new  product.  There  is  room 
for  much  difference  of  opinion  as  to  the  cases  in  which 
ownership  may  thus  be  acquired  by  manufacture,  and 
a  long  controversy  was  carried  on  between  the  jurists 
of  the  Proculian  and  Sabinian  schools  upon  the  subject  \ 

(y)  '  Fructuum  perceptio,'  i.  e.  the  rightful  taking  of  the 
produce  of  property  by  a  person  who  is  not  owner  of  the 
property. 

(S)  Lawful  possession,  continued  for  such  periods  as  may 
be  recognised  by  law  as  sufficient  for  the  purpose.  So, 
in  the  older  Roman  law,  the  possession  of  an  object  which 
had  been  acquired  bona  fide  and  '  ex  iusta  causa '  gave  in 
one  or  two  years,  according  as  the  object  was  a  moveable 


*  Dig.  li.  I.  3  pr.  "  Dig.  li.  31.  i. 

'  Cf.  A.  G.  V.  Trustees  of  British  Museum  [1903]  2  Ch.  598. 

*  Settled  by  Justinian,  Inst.  ii.  i.  34. 


208 


PRIVATE    LAW:    RIGHTS    'IN    REM.' 


CHAP.  XI. 


Without 


or  an  immoveable,  full  ownership  of  it,  by  the  title  called 
*usucapio.'  And  so  English  law,  which  does  not  favour 
this  title,  practically  transmutes  long  possession  of  real 
property  into  ownership,  by  bringing  to  an  end  the  right 
of  the  owner;  for  by  the  Statute  3  &  4  W.  IV.  c.  27.  s.  34, 
it  is  enacted  that,  'at  the  determination  of  the  period 
limited  by  this  Act  to  any  person  for  making  an  entry 
or  distress,  or  bringing  any  writ  of  quare  impedit  or  other 
action  or  suit  \  the  right  and  title  of  such  person  to  the 
land,  rent  or  advowson,  for  the  recovery  whereof  such 
entry,  distress,  action  or  suit  respectively  might  have  been 
made  or  brought  within  such  period,  shaU  be  extinguished.' 

This  mode  of  acquisition,  sometimes  called  'acquisitive 
Prescription,'  must  be  carefully  distinguished  from  'ex- 
tinctive Prescription,'  or  the  'Limitation  of  actions,'  which, 
as  wUl  presently  appear,  causes  not  a  transfer  of  a  right, 
but  merely  the  loss  of  a  remedy. 

2.  The  right  is  obtained  without  an  act  of  possession  by : 

(a)  'Accession,'  when  the  owner  of  the  principal  object 
becomes  also  owner  of  its  accessory  ^ 

Immoveables  may  accede,  or  adhere,  to  immoveables,  as 
is  the  case  when  soil,  is  carried  from  one  bank  of  a  river 
to  another,  'alluvio,'  'avulsio';  or  an  island  is  formed, 
*  insula  nata,'  and  is  divided  between  the  riparian  pro- 
prietors, or  assigned  to  him  to  whose  land  it  is  nearest; 
or  a  river  leaves  its  bed, '  alveus  derelictus,'  which  is  then 
shared  by  the  owners  of  the  banks. 

Moveables  may  accede  to  immoveables.  So  beams  and 
other  objects  fastened  into  a  house  become  part  of  it  by 
*inaediflcatio,'  except  so  far  as  they  come  within  the  in- 
dulgence granted  by  the  law  of  '  fixtures ' ;  and  trees  and 
crops  become    inseparable  from    the    soil  in  which   they 


'  I.  e.  as  a  rule  twenty  years,  which  period  has  been  reduced  by  37  &  38 
Vict.  c.  57  to  twelve  years. 

*  It  may  be  worth  while  to  observe  that '  accessio '  in  Latin  is  not  the 
name  of  a  title,  but  signifies  the  accessory  thing.  Cf.  Dig.  xxxiv.  2. 19.  13. 


DERIVATIVE   ACQUISITION.  209 

are  planted  by  *  satio '  or  '  plantatio ' ;  in  pursuance  of  the    chap.  xi. 
maxim  'quidquid  plantatur  solo  cedit.' 

Moveables  may  accede  to  moveables,  as  an  embroidery 
to  a  garment.  On  the  other  hand, '  proprietas  totius  navis 
carinae  causam  sequitur\'  The  rule  and  the  exceptions 
to  it  were  discussed  by  the  Romans  under  the  heads  of 
'scriptura,'  'pictura,'  'partus  ancillae,'  'adiunctio.' 

(fi)  '  Confusio '  and  '  coramixtio,'  which  usually  produce 
joint-ownership. 

2.  Derivative  acquisition  may  take  place  inter  vivos  or  Derivative 
upon  death.  In  the  former  case,  it  is  often  described  as^^^^^'" 
*  alienation,'  or  'conveyance,'  and  implies  in  Roman  law 
the  concurrence  both  of  the  alienor  and  the  alienee.  'In 
omnibus  rebus  quae  dominium  transferunt,  concurrat 
oportet  affectus  ex  utraque  parte  contrahentium  ^.'  Such 
concurrence  is  a  '  contract,'  in  the  wider  sense  of  that  term, 
in  which  it  has  been  defined  as  'the  union  of  several 
persons  in  a  coincident  expression  of  will  by  which  their 
legal  relations  are  determined  ^.'  Derivative  acquisition  of 
single  objects  upon  death  takes  place  by  legacy  or  by 
'donatio  mortis  causa V 

Alienation  ititer  vivos  required,  according  to  Roman  law, 
not  only  the  agreement  of  the  parties,  but  also  a  delivery 
of  possession,  'traditio.'  '  Traditionibus  et  usucapionibus 
dominia  rerum,  non  nudis  pactis  transferuntur.'  On  the 
other  hand,  a  mere  delivery,  without  a  valid  accompanying 
agreement,  was  not  enough.  'Nunquam  nuda  traditio 
transfert  dominium,  sed  ita  si  venditio,  aut  aliqua  iusta 
causa,  praecesserit,  propter  quam  traditio  sequereturV    So 


'  Dig.  vi.  I.  61. 

'  Dig.  xliv.  7.  55.     As  to  English  law,  infra,  chapter  xii. 

'  Savigny,  Obligationenrecht,  ii.  p.  7.  Kant  defines  contract,  in  the 
sense  of  conveyance,  as  'Der  Act  der  vereinigten  Willkuhr  zweier 
Personen,  wodurch  uberhaupt  das  Seine  des  Einen  auf  den  Anderen 
iibergeht.'    Rechtslehre,  Werke,  vii.  p.  71. 

*  Cod.  2.  3.  30.  *  Dig.  xli.  I.  41. 

HOLLAND  P 


2IO  PRIVATE    LAW:    RIGHTS  'IN    REM.' 

CHAP.  XI.  in  English  law,  the  gift  of  a  chattel,  unless  it  be  by  deed, 
must  be  accompanied  by  delivery  of  possession,  and  '  liveiy 
of  seisin'  was  essential  to  pass  a  freehold  estate  in 
land.  In  the  older  French  law,  'pour  qu'une  obligation 
transmit  la  propriete,  elle  devait  6tre  suivie  de  la  tradition. 
Celui  qui  achetait  une  maison,  par  exemple,  n'en  devenait 
proprietaire  que  du  moment  ou  la  maison  lui  etait  livree ; 
si  elle  etait  livree  a  une  autre  personne  c'etait  cette 
personne  qui  I'acquerait.  L'obligation  n'etait  alors  qu'un 
titre  pour  se  f aire  donner  la  propriete ;  le  moyen  d'acquerir 
cette  propriete  etait  la  tradition  \' 

As  a  general  rule,  however,  in  English,  and,  it  seems, 
also  in  modern  French  law^,  the  alienation  of  specific 
property  is  effected  as  soon  as  the  alienatory  contract  is 
complete.  A  purchaser  who  chooses  an  article  in  a  shop 
becomes  the  owner  of  it  from  the  moment  that  he  has 
agreed  with  the  shopkeeper  upon  the  priced  Special 
formalities  are,  however,  superadded  to  the  consent  of  the 
parties  in  particular  cases.  Thus,  according  to  the  law  of 
England,  a  grant  of  land  must  be  under  seal,  and  the 
assignment  of  a  ship  must  be  by  bill  of  sale.  On  the 
continent  the  presence  of  a  notary  pubUc  is  often  needed 
to  give  validity  to  the  act,  or  it  has  to  be  registered  in 
a  public  office*.  A  determined  effort  has  been  recently 
made  to  establish  a  system  of  compulsory  registration  of 
title  in  England  ^ 


•  Code  Civil,  expliqu^  par  Rogron,  art.  711. 

'  Code  Civil,  1583,  Codice  Civile,  1448.  Scots  law  was  modified  in  the 
same  direction  by  19  &  20  Vict.  c.  60,  and  is  now  assimilated  to  English 
law  by  the  Sale  of  Goods  Act,  1893,  ss.  17,  18. 

'  Gilmour  v.  Supple,  11  Moo.  P.  C.  566. 

*  On  Registration  of  Title  in  Germany  and  Austria-Hungan,',  see  the 
Reports  presented  to  Parliament  in  1896  [c.  8139]. 

5  By  the  Land  Transfer  Act,  1897,  60  &  61  Vict.  c.  65,  amending  the 
Act  of  1875,  registration  on  sale  may  be  made  compulsory  in  any  county 
or  part  of  a  county  by  Order  in  Council,  unless  the  making  of  sucli  Order 
is  opposed  as  provided.  An  Order  in  Council  has  accordingly  been  made 
which  on  January  i ,  1 900,  took  effect  throughout  the  county  of  London. 


DERIVATIVE   ACQUISITION.  211 

Ulpian  gives  a  list   of    the    modes  of    acquiring    phy-    chap.  xi. 
sical  objects,  some  of  which  are  peculiar  to  Roman  law. 
'Singularum  rerum  dominia,'  he  says,  'nobis  adquiruntur 
mancipatione,    traditione,    usucapione,    in    iure    cessione, 
adiudicatione,  lege^' 

Such  property  as  may  be  had  in  inventions  and  in  works  Intangible 
of  art  is  recognised  by  law  only  after  compliance  with  P™P^''  y- 
certain  formalities,  which  are  intended  both  to  bring  to 
a  test  the  merit  of  the  inventor  or  artist,  and  at  the  same 
time  to  define  the  right  for  which  protection  is  claimed. 
The  inventor  has  in  England  to  present  a  petition  to  the 
Crown  and  lodge  a  description  of  the  alleged  invention 
at  a  public  office.  After  a  certain  time  has  elapsed  and 
opportunity  has  been  given  for  objections  to  be  made, 
letters  patent  are  issued,  granting  to  the  petitioner  the 
exclusive  right  of  using  his  invention  for  fourteen  years, 
a  term  which  is  sometimes  extended.  The  patentee  may 
by  a  registered  deed  assign  his  right,  or  may  grant  licences 
for  the  manufacture  of  the  article  to  which  it  relates. 

What  is  described  as  'literary  and  artistic  property'  is 
in  general  acquired  by  producing  and  making  public  a 
work  of  literature  or  art,  although  till  a  copy  of  the  work 
has  been  deposited  or  registered  in  a  public  office,  the  law 
in  most  cases  gives  it  no  protection.  A  copy-right  is 
allowed  not  only  in  books,  paintings,  and  sculpture,  but 
also  for  casts,  engravings,  drawings,  photographs,  and 
designs  for  articles,  whether  of  ornament  or  utility.  And 
the  right  may  be  assigned. 

A  trade-mark  is  acquired  by  use  followed  by  registration, 
and  is  capable  of  assignment.  The  law  of  many  countries 
will  recognise  foreign  patents,  copy-rights  and  trade- 
marks ;  and  treaties  are  made  to  arrange  the  conditions 
under  which  this   favour  will  be  granted^.     A  franchise 


*  Reg.  xix.  2;  of.  Varro,  de  R.  R.  ii.  10. 

'  A  Convention  for  an    International  Union  for  the  protection  of 

P2 


212 


PRIVATE    LAW:    RIGHTS   'IN    REM.' 


CHAP.  XI. 


Complex 
masses  of 
rights  and 
duties. 


Disposi- 
tive faces 
of  general 
applica- 
tion. 


can  be  acquired  only  by  royal  grant,  actual  or  presumed, 
and  may  be  assigned  by  deed. 

Those  complex  masses  of  rights  and  duties  which  are 
sometimes  treated  as  property,  grow  up  gradually  round 
a  man  as  a  result  of  the  various  circumstances  of  his  life. 
They  are  transferred  from  him,  so  far  as  they  are  capable 
of  transfer,  by  some  form  of  universal  succession  \ 

Besides  the  '  dispositive  facts '  which  are  thus  proper  to 
each  species  of  property,  there  are  others  of  quite  general 
application.  These  are  either  '  voluntary,'  or  '  involuntary,' 
i.  e.  they  are  the  result  of  the  act  of  at  least  one  of  the 
parties  concerned,  such  as  purchase,  or  gift,  or  testament, 
or  are  the  result  of  causes  external  to  the  parties,  such 
as  the  decision  of  a  Court,  or  the  operation  of  a  rule  of 
law  upon  a  given  set  of  circumstances,  such  as  bankruptcy, 
marriage,  or  proximity  of  relationship.  It  is  hardly 
necessary  to  observe  how  large  a  space  is  occupied  in 
every  system  of  law  by  the  definition  of  the  right  to 
succeed  to  property  enjoyed  by  the  various  classes  of  heirs 
and  next  of  kin,  and  how  comparatively  modern  is  the 
right  to  defeat  the  expectations  of  such  persons  by  leaving 
the  property  away  from  them  by  will. 


Divesti- 
tive facts. 


As  something  has  been  said  in  a  former  chapter  of 
'divestitive  facts'  generally ^  it  may  be  sufftcient  to  add 
here  that  property  of  all  kinds  is  lost  not  only  by  the 
death  of  its  owner,  but  also  by  his  ceasing  to  enjoy  legal 
recognition  as  a  person ;  a  consequence  which,  under  some 
systems,  follows  from  'entering  into  religion,'  from  con- 
viction of  serious  crimes,  from  outlawry,  and  generally  from 


Industrial  Property '  was  signed  at  Paris,  on  behalf  of  a  number  of 
Powers,  20  March,  1883.  Great  Britain  acceded  to  it  17  March,  1884, 
and  is  also  a  party  to  a  Convention  for  an  'International  Union  for 
the  protection  of  Literary  and  Artistic  Works,'  signed  at  Berne,  6  Sep- 
tember, 1886. 

'  Supra,  p.  154.  '  Cf.  supra,  p.  152. 


FACTS   OF   GENERAL   APPLICATION.  21 3 

causes    which  produce  forfeiture  \     It   may  also  be  lost    chap.  xi. 
not    only    by    the    various    forms    of   alienation,   but   by 
abandonment.    It  is  of  course  lost  by  the  destruction  of 
the  object  owned. 

The  modes  of  acquiring  and  losing  ownership  vary,  it 
need  not  be  said,  with  the  progress  of  civilisation,  the 
tendency  of  which  is  generally  towards  their  simplification. 
The  attention  of  the  student  of  Jurisprudence  should  be 
mamly  directed  to  those  modes  which  he  finds  to  be  more 
'  constant '  than  the  rest,  most  of  which  were  recognised  by 
the  Romans  as  being  institutes  of  the  '  ius  gentium  ^.' 

Ownership  may  be    exclusive,  or    enjoyed  in  common  Modes  of 
with  others,  'condominium.'      In  the   latter    case,  either gj^jp^^' 
each  of  the  co-owners  may  have  a  quantitative  share  in 
the   property,   as    is    the   case    with    English  tenants-in- 
common,   or   no    quantitative   shares   may  be   recognised, 
as  in  the  Indian  village  communities. 

In  some  systems  a  distinction  is  drawn  between  the 
strictly  legal,  and  the  beneficial,  ownership  of  one  and 
the  same  object,  a  distinction  expressed  in  English  law 
by  the  terms  'legal'  and  'equitable,'  and  in  Roman  law 
by  '  Quiritarian '  and  '  Bonitarian,'  property. 

One  or  more  of  the  subordinate  elements  of  ownership,  lura  in  re 

aliena. 
such  as  a   right   of   possession,  or   user,  may  be  granted 

out   while   the   residuary  right   of   ownership,   called  by 

the  Romans  'nuda  proprietas,'  remains  unimpaired.    The 

'  Cf.  supra,  p.  93  n.  i. 

^  It  may  perhaps  be  worth  while  to  compare  with  what  has  been  said 
in  the  text  the  classification  of  the  titles  to  property  (things)  which  was 
proposed  by  Bent  ham.  He  reduces  them  to  the  following  heads:  — 
I.  Actual  possession ;  2.  Ancient  possession  in  good  faith;  3.  Possession 
of  the  contents  and  produce  of  land;  4.  Possession  of  what  land  supports 
and  of  what  it  receives;  5.  Possession  of  adjacent  lands;  6.  Ameliorations 
of  one's  own  property;  7.  Possession  in  good  faith  with  amelioration  of 
another's  property;  8.  Exploration  of  mines  in  the  land  of  another; 
9.  Liberty  of  fishing  in  great  waters;  10.  Liberty  of  hunting  upon 
unappropriated  grounds;  11.  Consent;  12.  Succession;  13.  Testament. 
Traitfe,  par  Dumont,  t.  i.  p.  276. 


214 


PRIVATE    LAW:    RIGHTS    'IN    REM.' 


Classifica- 
tion. 


Emphy- 
teusis. 


elements  of  the  right  which  may  thus  be  disposed  of 
without  interference  with  the  right  itself,  in  other  words, 
which  may  be  granted  to  one  person  over  an  object  of 
which  another  continues  to  be  the  owner,  are  known 
as  Mura  in  re  aliena*.' 

The  permanently  important  species  of  such  rights  are 
'  Servitude '  and  '  Pledge.'  Two  others,  '  Emphyteusis ' 
and  'Superficies,'  were  peculiar  to  Roman  law,  and  may 
therefore  be  dismissed  in  a  few  words. 

'  Emphyteusis '  was  the  right  of  a  person  who  was  not 
the  owner  of  a  piece  of  land  to  use  it  as  his  own  in  per- 
petuity, subject  to  forfeiture  on  non-payment  of  a  fixed 
rent  C  canon ')  and  on  certain  other  contingencies.  The 
position  of  the  '  emphyteuta '  presents  obvious  analogies  to 
that  of  a  feudal  tenant  or  an  Indian  ryot.  'Superficies' 
was  the  right  which  one  person  might  have,  in  perpetuity 
or  for  a  very  long  term  of  years  ^,  over  a  building  which, 
having  been  erected  on  the  land  of  another  person,  became, 
upon  the  principle  'quidquid  inaedificatur  solo  cedit,'  the 
property  of  the  owner  of  the  land. 


Servi- 
tudes. 


We  have  seen  that  the  rights  of  the  owner  of  a  given 
piece  of  property  sometimes  involve  a  restriction  on  the 
rights  of  others  to  do  what  they  will  with  their  own. 
Thus  the  owner  of  land  unburdened  by  buildings  is  said 
to  have   a   'natural  right'   that  no   excavation   shall   be 


*  For  some  interesting  remarks  upon  the  advantages  derived  from  a 
recognition  of  such  'iura,'  see  Sohm,  Institutes,  Transl.,  p.  157. 

'  In  the  latter  case,  paying  a  '  solarium.'  The  '  superficiarius '  has 
only  detention  of  the  buildings,  but  quasi-possession  of  the  right  over 
them,  which  is  protected  by  interdicts.  Dig.  xliii.  18.  i.  The  'Chijo- 
ken'  (translated  'superficies')  of  the  Japanese  Civil  Code,  arts.  265-269, 
defined  as  'the  right  to  use  another  person's  land  for  the  purpose  of 
owning  thereon  structures  or  plantations  of  trees  or  bamboos,'  is  a  right 
the  duration  of  which,  if  not  fixed  by  the  parties,  nor  terminated  by  the 
superficiary,  may  be  fixed  by  a  Court  at  not  less  than  twenty  or  more 
than  fifty  years.  The  dissatisfaction  of  foreign  liolders  of  perpetual  leases 
at  being  registered  a.s '  superficiarii '  led  to  diplomatic  correspondence  in 
1903- 


SERVITUDES.  21 5 

carried  on  either  under  it  or  so  near  to  it  as  to  cause  it 
to  fall  away.  He  has  also  a  '  natural  right '  that  a  stream 
which  reaches  his  land  shall  not  be  intercepted  in  its 
course  through  the  land  of  his  neighbour  \ 

The  earUest  '  servitudes '  seem  to  have  been  artificial  ex- 
tensions of  such  natural  rights.  They  derive  their  name 
from  imposing  a  sort  of  subjection  upon  the  landowner 
whose  rights  they  restrict  in  favour  of  his  neighbour; 
or  rather  upon  the  plot  of  land  itself  in  favour  of  the 
neighbouring  plot,  for  it  is  said,  '  non  personae  sed  praedia 
debent  ^.'  The  land  which  benefits  by  a  servitude  is  called 
the  '  praedium  dominans,' '  dominant  tenement ' :  the  land 
which  is  burdened  with  it  is  the  '  praedium  serviens,' 
'servient  tenement.'  These  Servitudes,  since  they  exist 
not  for  the  benefit  of  any  individual  as  such,  but  as 
giving  increased  value  to  a  given  piece  of  land,  are  called 
'real,'  'praedial,'  or  'appurtenant.'  A  later  recognition 
seems  to  have  been  given  to  the  class  of  servitudes  which 
are  described,  by  way  of  contrast,  as  being  '  personal,'  or 
'in  gross,'  and  which  may  be  enjoyed  by  an  individual, 
as  such,  irrespectively  of  the  ownership  of  land.  A  right 
analogous  to  servitude,  though  not  reducible  to  either 
of  these  classes,  is  that  which,  in  English  law,  the  in- 
habitants of  a  given  place  may  have,  by  custom,  to  go 
upon  a  neighbouring  piece  of  land  at  certain  times  for 
a  given  purpose,  e.  g.  to  hold  horse-races  or  to  dance  on 
the  green  ^ 

A  Servitude  has  been  defined  as  'a  real  right,  consti- 
tuted for   the   exclusive   advantage  of  a  definite   person 


'  The  French  Code,  art.  639,  includes  these  rights  under  'Servitudes,' 
or '  Services  fonciers' ;  enumerating,  among  the  ways  in  which  servitudes 
may  arise,  '  de  la  situation  naturelle  des  lieux.' 

'  Dig.  viii.  3.  34.     Cf.  ib.  i.  15. 

'  Cf.  Mounsey  v.  Ismay,  3  H.  &  C.  486.  According  to  recent  views, 
such  customs  are  a  survival  of  the  old  common  use  of  the  lands  of  a  town- 
ship, rather  than  an  intrusion  on  the  rights  of  the  lord.  Cf.  Pollock, 
Land  Laws,  p.  39;  Warwick  v.  Queen's  College,  Oxford.  L.  R.  10  Eq.  105. 


2l6 


PRIVATE   LAW:    RIGHTS    'IN    REM." 


Classifica- 
tion. 


Real  Ser- 
vitudes. 


Profits. 


or  definite  piece  of  land,  by  means  of  which  single 
discretionary  rights  of  user  in  the  property  of  another 
belong  to  the  person  entitled  \' 

Certain  characteristics  applicable  chiefly  to  real  servi- 
tudes, and  for  the  most  part  easily  deducible  from  what 
precedes,  are  summed  up  in  the  following  passages  from 
the  Roman  law:  — 

'Servitutum  non  ea  natura  est,  ut  aliquid  faciat  quis, 
sed  ut  aliquid  patiatur  aut  non  faciat^.' 

*  NulU  res  sua  servit  ^' 

*  Servitus  servitutis  esse  non  potest  ^' 

Servitudes  may  be  classified  in  various  ways.  They  may 
be  'positive,'  consisting  'in  patiendo,'  or  'negative,'  consist- 
ing 'in  non  faciendo';  'continuous'  or  'discontinuous'; 
'rural'  or  'urban';  'apparent'  or  'non-apparent.'  Their 
most  important  division  is,  however,  into  'real'  and 
personal  ^' 

A  real  servitude  is  defined  in  the  French  Code  as  'une 
charge  imposee  sur  un  heritage  pour  I'usage  et  I'utilite 
d'un  heritage  appartenant  a  une  autre  personne".'  Such 
servitudes  may  be  divided,  although  the  distinction  is 
unknown  to  Roman  law  or  French,  into  what  are  techni- 
cally described,  in  the  language  of  English  law,  as  'profits 
a  prendre '  and  '  easements.' 

A  right  of  the  former  kind  implies  that  the  owner 
of  the  dominant  tenement  is  entitled  to  remove  certain 
tangible  objects  from  the  servient  tenement.  Of  this 
kind  are  the  English  rights  of  'common  of  pasture,'  'of 
piscary,'  '  of  turbary,'  i.  e.  of  digging  turves,  '  of  estovers,' 


*  Von  Vangerow,  Pandekten,  iii.  §  338. 

^  Dig.  viii.  I.  15.  As  to  the  one  exception  to  this  rule,  see  Dig.  viii. 
5.  6  and  8;  viii.  2.  33. 

'  Dig.  viii.  I.  26.  *  lb.  viii.  3.  t,;^.  i. 

'  '  Servitutes  aut  personarum  sunt,  utususetususfructus;  aut  rerum, 
ut  servitutes  rusticorum  praediorum  et  urbanorum.'    Dig.  viii.  i.  i. 

•  Code  Civil,  Liv.  ii.  tit.  4,  'Des  Servitudes  et  Services  Fonciers.' 


REAL   SERVITUDES.  21/ 

L  e.    of    cutting    wood.\    These,    like    the    Roman    Mura     chai 
pascendi,'  '  calcis  coquendae,'  '  harenae  f odiendae  ^,'  are  all 
for   the  benefit  of  agriculture.    Of   a  somewhat    different 
character    are    rights   of  'common    in    the    soil,'   e.  g.  of 
quarrying,  or  digging  for  coal  or  minerals. 

That   species  of  real  servitude    for  which  Roman  law  Ease- 
has  no  distinguishing  name,  but  which  EngUsh  law  calls  ™^"   ' 
an  Easement,  is  delined  in  an  ancient  work  of  authority 
as  *a  privilege  that  one  neighbour  hath  of  another,  by 
writing  or  prescription,  without  profit,  as  a  way  or  sink 
through  his  land,  or  the  like  I' 

The  more  important  easements  are  rights  of  way,  to 
the  use  of  water,  to  the  free  reception  of  hght  and  air  *, 
to  the  support  of  buildings  ^  The  Roman  distinction 
between  'rural'  and  'urban'  servitudes,  as  to  the.  precise 
meaning  of  which  more  has  perhaps  been  written  than  was 
necessary,  turned  upon  the  general  suitability  of  the  right 
for  the  enjoyment  of  land  or  of  buildings  respectively. 

English  law  will  not  allow  of  the  creation  of  an 
easement  of  a  kind  hitherto  unknown®.  The  list  of 
analogous  servitudes  in  Roman  law  was  more  elastic,  and 
the  French  Code  lays  down  that  'il  est  permis  aux  pro- 
prietaires  d'etablir  sur  leurs  proprietes,  ou  en  faveur  de  ■ 
leurs  proprietes,  telles  servitudes  que  bon  leur  semble, 
pourvu  neanmoins  que  les  services  etablis  ne  soient  imposes 


*  A  right  to  go  on  another's  land  to  draw  water  is  not  a  profit. 
'  Inst.  ii.  3.  2;  Dig.  viii.  3.  1-6,  24. 

'  Termes  de  la  ley,  p.  284.  This  definition  would  however  be  misleading 
without  explanation.    See  Goddard  on  Easements,  p.  2. 

*  Now  held  by  the  House  of  Lords  to  be  a  right  of  enjoyment,  not  of 
property,  infringed  only  when  the  obstruction  amounts  to  an  actionable 
nuisance.   Colls  v.  Home  &  Col.  Stores  [1904]  A.  C.  179. 

^  The  doubt  which  was  entertained  as  to  the  possibility  of  gaining  a 
right  by  prescription  to  lateral  support  from  land  for  land  as  burdened 
by  buildings  has  been  set  at  rest  by  Angus  v.  Dalton,  L.  R.  6  App.  Ca. 
740.  A  similar  right  to  lateral  support  from  buildings  was  allowed  in 
Lemaistre  v.  Davis,  L.  R.  19  Ch.  D.  281. 

'  Keppel  V.  Bailey,  2  My.  &  K.  535. 


2l8 


PRIVATE    LAW:    RIGHTS    'IN   REM. 


CHAP.  XI.  ni  a  la  personne,  ni  en  faveur  de  la  personne,  mais  seule- 
ment  a  un  foiids  et  pour  un  fonds,  et  pourvu  que  ces 
services  n'aient  d'ailleurs  rien  de  contraire  a  I'ordre  public  \' 

Some  things  are  too  trivial  to  be  the  object  of  a  servi- 
tude. So  in  English  law  there  can  be  no  easement  of 
a  fine  view.  'For  prospect,'  it  is  decided,  'which  is  a 
matter  of  delight  and  not  of  necessity,  no  action  lies  for 
stopping  thereof  I'  Roman  law  was  more  indulgent  to 
the  pleasures  of  the  eye^;  although  it  refused  to  reckon 
among  servitudes  a  right  to  gather  apples,  or  to  take  a 
stroll,  or  to  picnic,  in  the  grounds  of  one's  neighbour  *. 

Real  servitudes  are  usually  acquired  by  grant,  testament, 
or  prescription.  They  may  terminate  in  consequence  of 
express  release,  of  abandonment,  or  of  a  union  of  the 
ownership  of  the  dominant  and  servient  tenements. 

Rights  of  enjoyment  exercisable  by  a  given  individual, 
as  such,  over  the  property  of  another,  are  '  personal  servi- 
tudes ^'  They  may  be  imposed  upon  moveable  as  well  as 
immoveable  property ;  not  only  upon  lands,  but  also  upon 
cattle,  furniture,  and  slaves. 

'Profits  a  prendre'  may  similarly,  according  to  English 
law,  be  enjoyed  by  an  individual,  apart  from  his  ownership 
of  land ;  but  an  easement,  according  to  the  modern  defini- 
tion of  the  right  which  identifies  it  with  a  real  servitude, 
can  never  be  thus  '  in  gross  V 
Use.  The  Romans  distinguished  two  grades  of  such  rights. 


Personal 
Servi- 
tudes. 


'  Dig.  viii.  3.  15,  16. 


1  Code  Civil,  art.  686. 

^  Aldred's  Case,  9  Rep.  576. 

*  lb.  viii.  I.  8. 

*  'Servitutes  aut  personarum  sunt  .  .  .  aut  rerum.'  Dig.  viii.  i.  i. 
Such  servitudes,  as  being  imposed  upon  a  thing  in  favour  of  a  person, 
were  called  by  the  mediaeval  jurists  '  mixed,'  to  distinguish  them  alike 
from  'real  servitudes,'  which  are  imposed  upon  a  thing  in  favour  of 
another  thing,  and  from  'personal  servitudes,'  which,  according  to  this 
terminology,  are  imposed  upon  a  person,  a  slave,  for  the  benefit  of  another 
person,  his  master. 

'  See  per  Lord  Cairns  C,  in  Rangeley  v.  Midland  Railway  Co.,  L.  R. 
3  Ch.  Ap.  306. 


PERSONAL   SERVITUDES.  219 

The  lower, '  usus,'  implied  in  strictness  a  user  of  the  object     chap.  xi. 

itself,  without  any  advantage  from  the  products  of  the  object. 

They  defined  the  higher, '  ususfructus,'  as  '  ius  alienis  rebus  Usufruct. 

utendi  fruendi   salva  rerum  substantia';   and  allowed  to 

the  '  f ructuarius '  rights   of  enjoyment  of  the  object  and 

its  products,  which,  as  long  as  they  lasted,  excluded  that 

of  the  owner.    In  several  modern  systems   of   law,  the 

grant  of  a  usufruct  answers  the  purpose  which  is  attained 

in  English  law  by  the  creation  of  a  Ufe  interest.    When  an 

English  testator  gives  to  A  a  life  estate  with  remainder 

to  B,  a  Frenchman  would  leave  the  property  to  B  subject 

to  a  'usufruit'  to  A  for  nfe\    The   Scots  'Ufe-rent'  in 

heritable  objects  or  money,  of  which  '  terce '  and  '  curtesy ' 

are  species,  is  of  the  same  nature  ^. 

The  servitudes  recognised  by  Roman  law  under  the 
names  '  Habitatio  '  and  '  Operae  servorum  et  animalium ' 
were  somewhat  abnormal  species  of  'usus.' 

A  personal  servitude,  as  originally  conceived  of,  could  Quasi- 
be  enjoyed  only  over  things  which  '  usu  non  consumuntur,' 
and  which  would  therefore  be  capable,  on  the  termina- 
tion of  the  right,  of  being  handed  over  to  their  proprietor 
in  as  good  condition  as  they  were  in  when  received.  A 
flock  was,  for  this  purpose,  regarded  as  an  ideal  whole, 
capable  of  being  restored  as  such,  although  the  usufruc- 
tuary had  replaced  some  of  the  individual  sheep  by  new 
ones ;  but  wine,  corn,  dresses,  and  even  money,  since  no 
use  could  be  made  of  such  objects  without  destroying 
or  spending  them,  were  not  allowed  to  be  susceptible  of 
usufruct.    A  '  quasi-usufruct '  of  such  things  was,  however. 


'  The  French  Code  is  so  careful  to  prevent  any  revival  of  prae-revolu- 
tionary  ideas,  that  it  avoids  recognising  usufruct  or  any  other  rights  as 
'  personal  servitudes.'  The  same  feeling  dictated  art.  638,  '  La  servitude 
n'^tablit  aucune  preeminence  d'un  heritage  sur  I'autre';  and  art.  686, 
against  the  imposition  of  servitudes  '  ni  ^  la  personne  ni  en  faveur  de  la 
personne.' 

'  Ersk.  Inst.  ii.  9.  §  40. 


220  PRIVATE    LAW:    RIGHTS   'IN   REM.' 

CHAP.  XI.  authorised  by  a  Senatus-consultum  under  the  early  Empire  ; 
'  not  that  this  enactment  created  a  usufruct,  properly  so 
called,'  says  Gains,  'for  the  Senate  is  powerless  to  vary 
natural  reason,  but  a  quasi-usufruct  was  introduced  when 
an  action  was  given  for  its  protection  \' 

The  usufructuary  of  perishable  things  has  to  give 
security  that  the  proper  quantity,  or  amount,  of  them 
shall  be  forthcoming  at  the  proper  time;  and  with  this 
safeguard  the  prhiciple  of  the  later  Koman  law  is  adopted 
in  the  French  Code.  By  art.  581,  'I'usufruit  peut  etre 
etabli  sur  toute  espece  de  biens,  meubles  ou  immeubles.' 

The  rights  of  a  usufructuary,  or  other  person  enjoying 
analogous  advantages  over  property  which  after  his  life- 
time, or  at  some  otherwise  determined  epoch,  will  pass 
to  another  person,  whether  such  other  person  be  called 
the  ' proprietaire,'  or  the  'remainder-man,'  follow  from 
the  nature  of  the  case.  They  may  vary  in  detail  under 
different  systems  of  law,  but  the  object  of  all  systems 
is  to  give  to  the  person  who  has  the  immediate  interest 
in  the  property  such  advantages  from  it  as  are  not  in- 
consistent with  the  interests  of  the  persons  who  will  be 
entitled  to  it  ultimately.  Acts  which  are  detrimental 
to  such  expectant  interests  are  sometimes  described  in 
English  law  as   injury  to  the  reversion.' 

A  usufruct  in  Roman  law  was  a  life-interest.  In  modern 
law  it  may  be  granted  for  a  less  period.  Roman  law 
did  not  allow  it  to  be  granted  to  a  corporation  for  more 
than  a  hundred  years,  a  period  which  is  reduced  in  the 
French  Code  to  thirty  I 

The  usufructuary  is  entitled  to  the  '  fruits '  of  the 
property ;  whether  '  natural,'  as  brushwood  and  the  young 
of  animals,  '  industrial,'  as  crops  and  vintages,  or  '  civil,' 
as  rent  of  land  and  interest  of  money.    He  has,  in  general. 


*  Dig.  vii.  5.  2.    Cf.  Inst.  ii.  4.  2. 

*  CJode  Civil,  art.  619. 


PERSONAL   SERVITUDES.  221 

to  exercise  the  right '  en  bon  pere  de  famille  \'  The  right  chap.  xi. 
may  be  left  by  will  or  granted  inter  vivos.  It  is  some- 
times implied  by  law.  So  in  France  parents  have  the 
usufruct  of  the  property  of  their  children  till  they  attain 
the  age  of  eighteen  ^.  It  may  be  let  or  alienated.  It 
comes  to  an  end  with  the  death  of  the  usufructuary,  or 
other  termination  of  the  period  for  which  it  was  granted, 
with  the  destruction  of  the  property  over  which  it  is  enjoy- 
able, and  with  a  '  consoUdatio '  of  the  title  of  the  proprietor 
with  that  of  the  usufructuary.  It  may  also  be  forfeited 
by  wrongful  user,  or  by  non-user. 

Certain  rights  known  to  German  law  as  *  Reallasten '  Real- 
resemble  servitudes,  because  they  impose  a  duty  upon 
a  given  piece  of  land.  They  are  not  servitudes,  because 
the  duty  consists  'm  faciendo.'  A  'Reallast'  is  defined 
as  'a  duty  attached  to  a  piece  of  land  of  periodically 
performing  positive  acts.'  The  owner  of  the  land  for 
the  time  being  is  bound  to  perform  these  acts,  'homo 
dat,  sed  fundus  debet.'  Of  such  a  nature  are  the  payment 
of  ground-rent,  the  maintenance  of  dykes  and  sluices, 
'Deich-  und  Sielrecht,'  and  many  feudal  incidents. 

Another  class  of  rights  which  somewhat  resemble  servi-  Licences, 
tudes  are  those  which  are  enjoyed  by  licencees.  But  a 
'licence,'  as  has  been  authoritatively  stated,  'passeth  no 
interest,  nor  alters,  or  transfers  property  in  anything,  but 
only  makes  an  action  lawful  which  without  it  had  been 
unlawful  ^'  A  canal  company  granted  to  one  Hill  the 
exclusive  right  of  putting  pleasure-boats  on  their  canal. 
Another  person  having  put  boats  there  was  sued  by  Hill, 
on  the  ground  that,  as  the  owner  of  an  estate  may  grant 
a  right  to  cut  turves,  or  to  fish  or  hunt,  there  was  no 

•  As  to  the  right  of  a  usufructuary,  and  a  life-tenant,  to  cut  great 
timber,  see  per  Bowen  L.  J.  in  Dashwoodr.  Magniac,  [1891]  3  Ch.  307. 
^  Code  Civil,  art.  384. 
'  Thomas  v.  Sorrell,  Vaughan,  351. 


222  PRIVATE    LAW:    RIGHTS    'IN    REM.' 

CHAP.  XT.  reason  why  he  should  not  grant  such  a  right  as  that 
in  question.  The  Court  however  held  that  no  sucli  right 
could  be  given.  'A  new  species  of  incorporeal  heredita- 
ment cannot,'  it  was  laid  down, '  be  created  at  the  will 
and  pleasure  of  the  owner  of  property,  but  he  must  be 
content  to  accept  the  estate  and  the  right  to  dispose 
of  it  subject  to  the  law.  A  grantor  may  bind  himself 
by  covenant  to  allow  any  right  he  pleases  over  his  pro- 
perty, but  he  cannot  annex  to  it  a  new  incident  so  as 
to  enable  the  grantee  to  sue  in  his  own  name  for  an 
infringement  of  such  a  limited  right  as  that  now  claimed  *.' 

Pledge.  The  'iura  in  re  aliena'  which  have  hitherto  been  con- 

sidered are  given  with  a  single  purpose.  Their  object  is 
to  extend  the  advantages  enjoyed  by  a  person  beyond 
the  bounds  of  his  own  property.  But  there  is  also  a 
right  of  the  same  class  which  is  given,  not  with  this 
object,  but  for  the  merely  subsidiary  purpose  of  enabling 
the  person  to  whom  it  is  granted  to  make  sure  of  receiving 
a  certain  value  to  which  he  is  entitled;  if  not  otherwise, 
then  at  all  events  by  means  of  the  right  in  question. 
The  other  rights  '  in  re  aliena '  enable  the  person  entitled 
to  them  to  enjoy  the  physical  qualities  of  a  thing.  This 
right,  which  is  known  as  Pledge,  merely  enables  a  person 
who  is  entitled  to  receive  a  definite  value  from  another, 
in  default  of  so  receiving  it,  to  realise  it  by  eventual  sale 
of  the  thing  which  is  given  to  him  in  pledge^. 

The  right  of  sale  is  one  of  the  component  rights  of 
ownership,  and  may  be  parted  with  separately  in  order 
thus  to  add  security  to  a  personal  obUgation.  When  so 
parted  with,  it  is  a  right  of  pledge,  which  may  be  defined 
as  '  a  right  in  rem^  realisable  by  sale,  given  to  a  creditor 
by  way  of  accessory  security  to  a  right    in   personam.^ 

*  Hill  I'.  Tupper,  2  H.  &  C.  121. 

^  On  the  comparative  law  of  Pledge,  see  Prof.  J.  H.  Wigmore,  in 
Harvard  L.  R.  x.  pp.  321,  389;  xi.  p.  18. 


PLEDGE.  223 

It  follows  from  this  definition  that  the  pledge-right  sub-  chap.  xi. 
sists  only  as  long  as  the  right  'in  personam'  to  which 
it  is  accessory^;  that  the  right  extends  no  further  than 
is  necessary  for  the  sale  of  the  thing  pledged,  not  to  its 
use  or  possession;  and  that  the  realisatiorf  of  the  value 
of  the  thing  by  sale  puts  an  end  to  the  title  of  the 
original  owner.  The  thing  pledged  need  not  be  the  pro- 
perty of  the  person  who  is  liable  personally.  Although 
it  is  usually  a  physical  object,  it  may  also  be  a  'ius  in 
re  aliena,'  including  even  a  right  of  pledge,  or  a  right 
'in  personam,'  in  which  last  case  the  realisation  of  its 
value  may  take  place  rather  by  receipt  of  payment  than 
by  sale^ 

The  objects  aimed  at  by  a  law  of  pledge  are,  on  the  Purposes 
one  hand,  to  give  the  creditor  a  security  on  the  value 
of  which  he  can  rely,  which  he  can  readily  turn  into 
money,  and  which  he  can  follow  even  in  the  hands  of 
third  parties ;  on  the  other  hand,  to  leave  the  enjoy- 
ment of  the  thing  in  the  mean  time  to  its  owner,  and 
to  give  him  every  facility  for  disencumbering  it  when 
the  debt  for  which  it  is  security  shall  have  been  paid. 

The  methods  by  which  these  objects  can  best  be  attained.  Varieties 
and  the  degree  in  which  they  are  attainable,  must  vary 
to  some  extent  with  the  nature  of  the  thing  pledged. 
Probably  the  rudest  method  is  that  which  involves  an 
actual  transfer  of  ownership  in  the  thing  from  the  debtor 
to  the  creditor,  accompanied  by  a  condition  for  its  re- 
transfer  upon  due  payment  of  the  debt.  Such  was  the 
'flducia'  of  the  older  Roman  law,  such  is  the  Scotch  Mortgage, 
wadset,  and  such  is  the  EngUsh  mortgage,  of  lands  or 
goods,  at  the  present  day,  except  in  so  far  as  its  theory 

^  This  right  need  not  arise  out  of  contract,  and  it  may  consist  in  what 
is  called  a  '  natural'  obligation,  a  term  which  will  be  explained  hereafter. 

'  In  order  to  cover  these  possible  varieties  of  objects.  Pledge  has  been 
defined  as  'das  Recht  an  fremden  Rechtsobjecten,  sich  ihren  Werth  in 
Gelde  (durch  Verkauf  oder  auf  andere  Weisr^)  zur  Befriedigung  einer 
Forderung  zu  verschaff  en .'  Holtzendorff  ,Ency  clopadie  ,Erster  Theil  ,p.3 1 1 . 


224  PRIVATE    LAW:     RIGHTS   'IN    REM.' 

CHAP.  XI.  has  been  modified  by  the  determination  of  the  Court  of 
Chancery  and  of  the  Legislature  to  continue,  as  long  as 
IX)ssible,  to  regard  the  mortgagor  as  the  owner  of  the 
property  \  Lord  Mansfield  was  unsuccessful  in  attempt- 
ing to  induce'  the  Courts  of  Common  Law  to  take  the 
same  view^ 

Pawn.  Another  method,  which  must  always  have  been  practised, 

is  that  in  which  the  ownership  of  the  object  remains 
with  the  debtor,  but  its  possession  is  transferred  to  the 
creditor '.  This  was  called  by  the  Romans  '  pignus  *.'  As 
a  rule  the  creditor  cannot  make  use  of  the  thing  which 
is  thus  in  his  custody.  If  he  is  to  take  its  profits  by 
way  of  interest,  the  arrangement  is  called  'antichresis.' 
He  had  originally  no  power  of  sale  without  express 
agreement,  but  this  became  customary,  and  was  at  least 
presumed. 

A  'pignus,'  or  pawn,  may  result  from  the  execution  of 
a  judicial  sentence, '  ob  causam  iudicati  ....  pignoris  iure 
teneri  ac  distrahi  posse  saepe  rescriptum  est^';  but  more 
frequently  arises  from  a  contract,  which  under  some 
systems  must  be  in  writing  ^  The  trade  of  lending 
money  upon  pledge  is  frequently  placed  under  legislative 
restrictions,  such  as  the  Pawnbrokers'  Acts  in  England, 
and  the  laws  regulating  '  Monts  de  Piete '  in  some  countries 
of  the  Continent. 

Lien.  Another    right    which,   like    pawn,    depends    upon    the 


*  In  vivum  vadium,  or  Welsh  mortgage,  the  creditor  repays  himself  out 
of  the  profits  of  the  property,  which  then  reverts  to  the  debtor.  Bl.  2 
Ck)mm.  157,  but  see  Fisher,  Mortg.  §  13.  In  mortuum  vadium  if  the  debt 
be  not  paid  by  the  time  fixed,  the  property  becomes  absolute  in  the 
mortgagee,  except  that,  by  the  intervention  of  the  Court  of  Chancery, 
the  mortgagor  is  still  allowed  during  a  further  period  an  'equity  of 
redemption.' 

*  See  Eaton  v.  Jacques,  Doug.  455. 

'  Though  he  may  sometimes  receive  it  back  again  to  hold  '  precario.' 

*  Ital.  'pegno,'  Fr.  'gage,'  Germ.  ' Faustpfand,'  Engl,  'pawn.' 
'  Cod.  viii.  23.  2. 

'  Code  Civil,  art.  2074;  Codice  Civile,  art.  1878. 


HYPOTHEC.  225 

possession  of  an  object,  is  not  dissimilar  to  it.  Vendors  chap.  xi. 
of  property,  persons  who  have  expended  work  and  labour 
on  goods,  and  others,  are  said  to  have  a  'lien'  on  the 
property  so  long  as  they  are  still  in  possession  of  it; 
that  is  to  say,  they  have  a  right  of  retaining  it  in  their 
possession  till  their  claims  in  respect  of  it  have  been 
satisfied. 

Lien  must  be  allowed  to  be  a  real  right,  in  so  far  as 
redress  may  be  had  against  any  one  interfering  with  it*; 
but,  as  has  been  said  by  Lord  Chief  Justice  Cockbum, 
'a  hen  is  a  mere  right  to  retain  possession  of  a  chattel, 
and  which  right  is  immediately  lost  on  the  possession 
being  parted  with.  In  the  contract  of  pledge  the  pawnor 
invests  the  pawnee  with  much  more  than  this.  He  is 
invested  with  a  right  to  deal  with  the  thing  pledged  as 
his  own  if  the  debt  be  not  paid  and  the  thing  redeemed 
at  the  appointed  time^.' 

Yet  another  mode  of  creating  a  security  is  possible,  Hypothec, 
by  which  not  merely  the  ownership  of  the  thing  but 
its  possession  also  remains  with  the  debtor.  This  is 
called  by  the  Roman  lawyers  and  their  modem  followers 
'hypotheca.'  Hypothecs  may  arise  by  the  direct  applica- 
tion of  a  rule  of  law,  by  judicial  decision,  or  by  agree- 
ment. Those  implied  by  law,  generally  described  as  '  tacit  Tacit, 
hypothecs,'  are  probably  the  earUest.  They  are  first 
heard  of  in  Roman  law  in  connection  with  that  right 
of  a  landlord  over  the  goods  of  his  tenant,  which  is  still 
well  known  on  the  continent  and  in  Scotland  under  its 
old  name,  but  in  England  takes  the  form  of  a  right 
of  Distress  ^.  Similar  rights  were  subsequently  granted 
to    wives*,    pupils,    minors ^    and    legatees ^    over    the 


•  The  person  enjoying  it  could  maintain  Trover. 
"^  Donald  v.  Suckling,  L.  R.  i  Q.  B.  612. 

'  Which  however  implied  no  power  of  sale  till  2  W.  &  M.  sess.  i.  c.  5. 

*  Cod.  V.  14.  II.  '  Dig.  xxvii.  g.  3.  '  Cod.  vi.  43.  i. 

HOLLAND  Q 


226 


PRIVATE    LAW:    RIGHTS   'IN    REM. 


Conven- 
tional. 


Judicial. 


property  of  husbands,  tutors,  curators,  and  heirs  respec- 
tively \ 

The  action  by  which  the  praetor  Servius  first  enabled 
a  landlord  to  claim  the  goods  of  his  defaulting  tenant  in 
order  to  realise  his  rent,  even  if  they  had  passed  into 
the  hands  of  third  parties,  was  soon  extended  so  as  to 
give  similar  rights  to  any  creditor  over  property  which 
its  owner  had  agreed  should  be  held  liable  for  a  debt. 
A  real  right  was  thus  created  by  the  mere  consent  of 
the  parties,  without  any  transfer  of  possession,  which, 
although  opposed  to  the  theory  of  Roman  law,  became 
firmly  established  as  applicable  both  to  immoveable  and 
moveable  property^.  Of  the  modern  States  which  have 
adopted  the  law  of  hjrpothec,  Spain  perhaps  stands  alone 
in  adopting  it  to  the  fullest  extent.  The  rest  have,  as 
a  rule,  recognised  it  only  in  relation  to  immoveables. 
Thus  the  Dutch  law  holds  to  the  maxim  'mobilia  non 
habent  sequelam,'  and  the  French  Code,  following  the 
coutumes  of  Paris  and  Normandy,  lays  down  that  'les 
meubles  n'ont  pas  de  suite  par  hypotheque^'  But  by 
the  'Code  de  Commerce,'  ships,  though  moveables,  are 
capable  of  hypothecation  * ;  and  in  England  what  is  called 
a  mortgage,  but  is  essentially  a  hypothec,  of  ships  is 
recognised  and  regulated  by  the  '  Merchant  Shipping  Acts,' 
under  which  the  mortgage  must  be  recorded  by  the 
registrar  of  the  port  at  which  the  ship  itself  is  registered  ^ 
So  also  in  the  old  contract  of  'bottomry,'  the  ship  is 
made  security  for  money  lent  to  enable  it  to  proceed  upon 
its  voyage. 

Property  may  sometipaes  become  subject  to  a  hypothec 


'  As  to  similar  rights  for  recovery  of  funeral  expenses,  wages  of  the 
servants  of  a  deceased  person,  &c.,  see  Code  Civil,  arts.  2101,  2107. 

^  On  the  difference  between  '  pignus '  and  '  hypotheca,'  see  Dig.  xiii. 
7.  9.  §  2;  1.  16.  238. 

'  Code  Civil,  art.  2 119;  cf.  Codice  Civile,  art.  1967. 

*  Art.  190.  '  17  &  18  Vict.  c.  104. 


HYPOTHEC.  227 

by  a  judicial  sentence.  So  under  the  older  French  law*:  chap.  xi. 
but  under  the  Code,  the  judgment  must  be  entered  upon 
the  register  of  '  hypotheques  ^.'  An  English  judgment  has 
analogous  effects,  but  must  be  registered.  According  to 
Roman  law,  no  real  right  was  gained  over  the  property 
till  judgment  had  been  followed  by  execution,  i.  e.  till 
possession  of  it  had  been  gained  by  the  creditor^. 

A  hypothec  presents  this  great  convenience,  that  it 
effects  no  change  of  ownership  and  leaves  the  debtor  in 
possession.  It  labours  under  the  disadvantage  of  easily 
lending  itself  to  a  fraudulent  preference  of  one  creditor 
over  another,  since  it  may  be  effected  by  an  agreement 
of  the  parties  concerned  without  the  knowledge  of  any 
one  else.  It  is  also  difficult  for  the  creditor  to  whom 
the  property  is  offered  as  security  to  make  certain  that 
it  has  not  been  already  encumbered. 

The  system  of  'Registration,'  'Inscriptions,'  or  *  Hypo- Registra- 
thekenbiicher,'  now  general  upon  the  Continent,  has 
obviated  these  evils  \  Every  hypothec,  in  order  to  have 
any  effect,  must  be  entered  by  the  proper  officer,  and 
remains  valid  till  it  is  removed  from  the  register.  Should 
a  sale  become  necessary,  this  can  no  longer  be  effected  by 
the  creditor,  but  must  be  authorised  by  the  Court. 

Mortgage  shares  with  hypothec  the  disadvantages  which 
result  from  secrecy;  and,  so  far  as  relates  to  land,  it  is 
notorious  that  all  attempts  to  establish  in  this  country 
a  '  register  of  encumbrances '  have  hitherto  failed  ^  Mort- 
gages of  chattels,  effected  by  an  instrument  called  a  Bill 
of  Sale,  which  is  in  effect  an  assignment  subject  to  a 
conditional  right  to  call  for  a  re-assignment,  although 
not  accompanied  by  a  delivery  of   possession,  were,  till 


'  Pothier,  Hypoth.  c.  i.  art.  2. 

^  Art.  2134.  '  Ckxi.  viii.  23.  i. 

*  They  were  ineffectually  attacked  by  a  constitution  of  the  Emperor 
Leo,  Cod.  viii.  18.  11. 

*  E.  g.  25  &  26  Vict.  c.  53. 

Q2 


228  PRIVATE   LAW:    RIGHTS   'IN    REM.' 

CHAP.  XI.  recently,  good  as  against  other  creditors,  unless  fraudulent  *. 
A  hotel-keeper  might,  for  instance,  mortgage  the  furniture 
of  the  hotel,  arranging  that  it  should  remain  in  the  house, 
so  that  he  might  continue  to  carry  on  the  business.  Since 
the  year  1854  it  has,  however,  been  necessary  that  the 
Bill  of  Sale  should  be  duly  registered  ^ 

Privileges.  Since  one  object  may  be  successively  pledged  to  several 
creditors,  it  becomes  necessary  to  fix  the  order  in  which 
they  may  resort  to  the  security. 

The  obvious  rule  would  be  expressed  by  the  maxim 
'qui  prior  est  tempore  potior  est  iure';  and  it  seems 
to  have  been  adopted  in  Roman  law,  to  the  extent  of 
disregarding  all  considerations  other  than  chronological 
order,  even  as  between  a  creditor  who  had  actual  possession 
of  a  '  pignus '  and  one  who  enjoyed  merely  a  '  hypotheca  ^.' 
To  this  rule  a  number  of  exceptions  were  made,  called  in 
later  law  '  privileges,'  which  took  precedence  irrespectively 
of  date^  According  to  modem  systems  a  pledge-holder 
with  possession  has  a  'privilege^';  but  the  distinction 
between  'privileges'  and  other  securities  has  almost 
disappeared  with  the  introduction  of  the  system  of  regis- 
tration, according  to  which  each  charge  takes  rank  only 
in  accordance  with  the  order  in  which  it  is  entered.    The 


'  In  which  case  they  are  void  by  1 3  Eliz.  c.  5,  and  under  the  Bankruptcy 
laws. 

^  By  17  &  18  Vict.  c.  36,  which  recites  that  'frauds  are  frequently 
committed  upon  creditors  by  secret  bills  of  sale  of  personal  chattels,  the 
holders  of  which  have  the  power  of  taking  possession  of  the  property  to 
the  exclusion  of  the  rest  of  their  creditors ' ;  and  defines  '  Bill  of  Sale '  so 
as  to  include  'assignments,  transfers,  declarations  of  trust  without 
transfer,  or  other  assurances  of  personal  chattels,  and  also  powers  of 
attorney,  authorities  or  licences  to  take  possession  of  personal  chattels  as 
security  for  any  debt.'  These  provisions  were  repeated  and  extended  in 
the  'Bills  of  Sale  Act,'  1878,  amended  by  subsequent  Acts. 

'  Dig.  XX.  I.  10. 

*  See  Code  Civil,  Liv.  iii.  tit.  18,  'Des  Privileges  et  Hypothdques.' 
A  Privilege  is  defined  in  art.  2095. 

*  lb.  art.  2073;  Codice  Civile,  art.  1958.  4. 


IMMUNITY   FROM    FRAUD.  229 

English  equitable  doctrine  of  '  tacking '  introduces  another  chap.  xi. 
exception  to  the  chronological  ranking  of  securities,  by 
uniting  securities  given  at  different  times,  so  as  to  prevent 
any  intermediate  purchaser  from  claiming  a  title  to  redeem, 
or  otherwise  discharge,  one  lien,  which  is  prior,  without 
redeeming  or  discharging  the  other  liens  also,  which  are 
subsequent  to  his  own  title  \ 

A  security  is  usually  transferable  only  together  with  Transfer 
the  claim  to  which  it  is  accessory.    The  right  terminates  nation, 
by  discharge  of  the  claim  to  which  it  is  accessory;   by 
being  released ;  by  destruction  of  the  thing  pledged ;  by 
the  creditor  becoming  owTier  of  the  thing ;  or,  if  the  right 
was  limited  in  duration,  by  efflux  of  time^ 

Under  a  system  of  registration,  it  is  further  necessary 
that  the  charge  be  removed  from  the  books. 

VI.  But  one  more  antecedent  right  'in  rem'  remains  Immunity 
for  consideration.  It  differs  essentially  from  those  already  praud 
described,  in  that  while  they  are  infringed  only  by  acts 
done  against  the  wiU  of  the  person  of  inherence,  this  is 
infringed  while  the  person  of  inherence  is  a  consenting 
party  to  his  own  loss.  It  is  the  right  not  to  be  induced 
by  fraud  to  assent  to  a  transaction  which  causes  one 
damage.  Its  nature  will  be  best  understood  from  an 
examination  of  the  nature  of  the  act  by  which  it  is 
violated.  Fraud  may  be  said  to  be  the  intentional  deter- 
mination of  the  will  of  another  to  a  decision  harmful  to 
his  interests  by  means  of  a  representation  which  is  neither 
true  nor  believed  to  be  true  by  the  person  making  it^. 

The  essentials  of  a  fraudulent  representation,  according  Fraudu- 

to  English  law,  are  that  it  is  (i)  untrue  in  fact,  (2)  made  presenta- 
tions. 
*  Story,  Equity  Jurisprudence,  §  412. 

^  Cf.  Code  Civil,  art.  2180. 

'  'Dolus  malus'  is  defined  by  Servius,  'machinatio  quaedam  alterius 
decipiendi  causa,  cum  aliud  simulatur  et  aliud  agitur ' ;  by  Labeo, '  omnis 
calliditas,  fallacia,  machinatio  ad  circumveniendum,  fallendum,  decipien- 
dum,  alterum  adhibita.'   Dig.  iv.  3.  i. 


230  PRIVATE    LAW:     RIGHTS   'IN    REM.' 

CHAP.  XI.  with  knowledge  of  its  untruth,  or  without  beUef  in  its 
truth,  or  with  recklessness  as  to  its  truth  or  falsehood, 
(3)  made  for  the  purpose  of  inducing  another  to  act  upon 
it\  It  seems  not  to  be  material  that  the  maker  of  the 
statement  should  know  it  to  be  untrue,  or  should  have 
an  interest  in  its  being  acted  on,  or  have  any  Avicked  wish 
to  injure.  Nor  need  the  statement  be  addressed  specifi- 
cally to  the  person  who  suffers  in  consequence.  So  the 
directors  of  a  company  who,  for  the  purpose  of  sellmg 
shares,  publish  fraudulent  representations,  may  be  sued 
by  any  one  who,  having  been  induced  thereby  to  take 
shares  from  the  company,  has  lost  money  ^ 

On  the  question  of  knowledge,  it  has  been  laid  down 
that  *if  a  man,  having  no  knowledge  whatever  upon  the 
subject,  takes  upon  himself  to  represent  a  certain  state 
of  facts  to  exist,  he  does  so  at  his  peril,  and  if  it  be  done 
either  with  a  view  to  secure  some  benefit  to  himself,  or 
to  deceive  a  third  person,  he  is  in  law  guilty  of  a  fraud : 
for  he  takes  upon  himself  to  warrant  his  own  belief  of 
the  truth  of  that  which  he  asserts.  Although  the  person 
making  the  representation  may  have  no  knowledge  of 
its  falsehood,  the  representation  may,  nevertheless,  have 
been  fraudulently  made'.' 

A  recent  attempt  to  carry  still  further  the  responsi- 
bility for  false  statements  has  not  been  successful.  The 
question  raised  was  whether  absence  of  reasonable  ground 
for  making  a  false  statement  which  causes  damage  is  in 
itself  'legal  fraud,'  or  is  only  evidence  from  which  an 
absence  of  belief  in  the  truth  of  the  statement  on  the 
part  of  the  person  making  it  may  be  inferred.  In  other 
words,  whether  the  actual  state  of  mind  of  the  defendant 

*  Such  a  representation,  apart  from  contractual  relations,  was  first 
recognised  as  actionable  in  Pasley  v.  Freeman  (1789),  2  Sm.  L.  C.  74. 

'  Aliter  if  the  shares  are  bought  in  the  market.  Peek  v.  Gurney,  L.  II. 
6H.  L.  377. 

'  Evans  v.  Edmonds,  13  C.  B.  777.'  Cf.  Arkwright  v.  Newbold,  17 
Ch.  D.  320. 


IMMUNITY   FROM    FRAUD.  23 1 

is  material,  or  whether  it  is  enough  if  the  statement  be    chap.  xi. 
such  as  an  ordinarily  careful   man    in    the    defendant's 
position  would  not  have  beUeved  to  be  true. 

The  latter  view  was  taken  by  the  Court  of  Appeal  in 
the  case  of  Peek  v.  Derry ',  but  the  decision  was  reversed 
by  the  House  of  Lords  ^,  which  has  thus  re-established  the 
rule  that  no  Uability  for  deceit  can  arise  upon  a  statement 
made  with  an  honest  belief  in  its  truth  ^ 

It  will  be  worth  while  to  indicate  some  of  the  more 
usual  forms  of  fraudulent  representation. 

1.  When  a  man  fraudulently  represents  that  he  is  the 
agent  of  another,  whereby  a  third  party  suffers  loss. 
For  instance,  a  person  pretends  that  he  has  authority 
to  order  goods  for  another,  and  the  goods  having  been 
supplied  accordingly,  and  the  alleged  principal  having 
repudiated  the  transaction,  the  tradesman  has  an  action 
against  the  pretended  agent  \  And  this  is  so  even  if 
the  allegation  of  agency  be  bona  fide^  for  it  is  equitable 
that  the  loss,  which  must  fall  on  some  one,  should  fall 
on  him  who  has  brought  it  about  by  an  untrue  statement, 
believed  and  acted  on  as  he  intended  it  should  be,  as  to 
which  he  gave  the  other  party  no  opportunity  of  judging 
for  himself. 

2.  When  false  statements  are  made  in  the  prospectus 
of  a  Company,  to  the  detriment  of  persons  who  are 
thereby  induced  to  become  shareholders. 

3.  When   false   statements   are  made   as  to  the   credit 


1  17  Ch.  Div.  54,  and  in  the  subsequent  American  case,  Chatham 
Furnace  Co.  v.  Moffatt,  147  Mass.  403. 

2  14  App.  Ca.  337. 

'  The  view  of  the  Court  of  Appeal  was  strenuously  supported  by  Sir  F. 
Pollock,  L.  Q.  R.  V.  p.  410,  that  of  the  House  of  Lords  by  Sir  W.  Anson, 
lb.  vi.  p.  72.  The  decision  of  the  House  of  Lords  gave  rise  to  the  Directors 
Liability  Act,  1890. 

*  Randall  v.  Trimen,  18  C.  B.  786.  The  more  usual  remedy  in  such  a 
case  is  now  upon  the  implied  warranty  of  authority,  Collen  v.  Wright, 
7  E.  &  B.  301,  8  E.  «fe  B.  674;  Oliver  r.  Bank  of  England  [1902]  i  Ch.  6iq. 
Cf.  Dig.  iv.  3.  8. 


232 


PRIVATE   LAW:    RIGHTS   'IN    REM.' 


Warranty. 


CHAP.  XI.    or  honesty  of  third  persons,  such  as  customers  or  servants, 
whereby  loss  is  occasioned  to  tradesmen  or  employers  \ 

4.  When  a  man  who  has  a  wife  living,  pretending  that 
he  is  single,  induces  another  woman  to  marry  him  ^. 

5.  When  a  master,  by  show  of  authority,  gets  his  servant 
to  do  an  Ulegal  act '. 

6.  When  dangerous  articles  are  knowingly  bailed,  with- 
out due  notice  to  the  bailee  of  their  quality  \ 

7.  An  untrue  warranty,  knowingly  superadded  to  a  con- 
tract of  sale  ^  was  at  one  time  held  to  be  actionable,  whether 
or  no  the  vendor  was  aware  of  its  untruth  ^ ;  but  it  is  now 
well  settled  that  no  one  is  liable  for  a  statement  which 
he  believes,  and  has  reason  to  believe,  to  be  true  ^ 

A  warranty  is  of  course  often  implied.  The  seller 
of  goods  distinguished  by  a  trade-mark  imphes  that  it 
has  been  rightfully  affixed  to  them,  and  a  purchaser  who 
is  induced  to  give  a  higher  price  for  the  goods  than  they 
would  be  worth  without  the  trade-mark  has  an  action  for 
deceit  *.  The  action  given  to  the  proprietor  of  the  trade- 
mark is  also  sometimes  said  to  be  founded  on  the  deceit, 
but  it  will  probably  be  sufficient  to  refer  to  what  we 
have  already  said  upon  this  subject  in  order  to  show  that 
this  right   is   not   a   right   to   immunity  from   a   perver- 


When 
implied. 

Trade- 
marks. 


*  Pasley  v.  Freeman,  u.  s.  Such  statements  must  by  g  Geo.  IV.  c.  14 
be  in  writing. 

*  Anon.  Skin.  119.  Statements  as  to  a  woman's  chastity,  false  to  the 
knowledge  of  the  defendant,  who  thereby  induced  the  plaintiff  to  marry 
her,  have  been  held  to  be  an  actionable  injury  to  the  plaintiff.  Kujek 
V.  Goldman,  9  Misc.  34  (New  York,  1894). 

*  Adamson  v.  Jarvis,  4  Bing.  72. 

*  WilUams  v.  E.  I.  Co.,  3  East,  192.  Cf.  Longmeid  v.  Holliday,  6  Ex. 
766.  » 

*  Cf.  Dig.  iv.  3.  37.     On  Warranties,  v.  infra,  pp.  282,  301. 

*  Williamson  v.  Alhson  (1802),  2  East,  446. 

">  Collins  V.  Evans  (1844),  in  Ex.  Ch.,  5  Q.  B.  820;  Weir  v.  Bell,  3  Ex. 
D.  243.    Peek  v.  Derry  (1889),  14  A.  C.  337. 

*  This  is  so  even  independently  of  the  Trade-marks  Acts.  Cro.  Jac. 
471. 


IMMUNITY  FROM    FRAUD.  233 

sion    of    one's    will    by    means    of    a    fraudulent    repre-    chap.  xi. 
sentation  ^ 

'  Supra,  p.  204.  It  is  submitted  that  not  only  are  trade-mark  cases,  so 
far  as  the  proprietor  of  the  mark  is  concerned,  mistakenly  said  to  turn 
upon  fraud,  but  that  a  similar  error  has  been  made  in  such  cases  as 
Collins  V.  Evans,  u.  s.,  and  Butterly  v.  Vyse,  2  H.  &  C.  42.  In  the  former 
of  these,  a  person  who  misinformed  a  sheriff's  officer  as  to  the  ownership 
of  goods,  whereby  they  were  wrongfully  taken  in  distress,  was  held  liable 
'for  the  deceit'  to  their  owner.  In  the  latter,  a  builder  was  allowed  to 
get  damages  'for  the  deceit'  against  a  person  who  had  fraudulently 
prevented  an  architect  from  granting  a  certificate,  which  was  necessary 
to  enable  the  plaintiff  to  be  paid  for  his  work. 


CHAPTER   Xn. 

PRIVATE    LAW  :     RIGHTS    *  IN    PERSONAM.' 

The  We  have  now  arrived  at  a   point  where   our  method 

adopted.  parts  company  with  that  of  the  Roman  jurists  and  their 
followers.  Adopting  as  the  radical  distinction  of  rights 
that  which  depends  upon  the  restricted  or  unrestricted 
character  of  the  person  of  incidence,  they  oppose  to  rights 
*  in  rem '  the  topic  of  '  Obligations,'  under  which  one  term 
are  included  all  rights  'in  personam,'  whether  prior  to 
wrong-doing  or  arising  out  of  it  \ 

We  have  ventured  to  pursue  a  different  course.  Our 
radical  distinction  of  rights  turns  upon  their  existing  or 
not  existing  antecedently  to  wrong-doing.  Reserving  all 
rights  of  the  latter  kind  for  separate  treatment,  we  are 
now  engaged  in  the  examination  of  antecedent  rights 
only,  and  having  dealt  with  such  of  those  rights  as  avail 
*in  rem'  against  the  whole  world,  have  next  to  describe 


E.  g.  'ohligamur  aut  re,  aut  verbis,  aut  simul  utroque,  aut  consensu, 
aut  lego,  aut  iuro  honorario,  aut  necessitate,  aut  ex  peccato.'  Modestinus, 
in  Dig.  xliv.  7.  52.  Cf.  the  more  familiar  list  of  the  sources  of  obligation 
given  in  Inst.  iii.  13.  2.  The  German  Civil  Code,  Bk.  ii,  follows  here 
the  method  of  the  Institutes. 


OBLIGATIONS.  235 

such  of  them  as  avail  '  in  personam '  against  ascertained   chap,  xn, 
individuals  ^ 

It  wiU  be  readily  understood  that  our  'antecedent  rights 
in  personam '  will  correspond  to  the  '  obligationes  ex  con- 
tractu '  and  '  quasi  ex  contractu '  of  Roman  law,  while  the 
Koman  law  of  'obligationes  ex  delicto'  and  'quasi  ex 
delicto,'  and  of  obligations  arising  from  breach  of  contract, 
for  which  last  there  exists  no  technical  Latin  name,  will 
correspond  to  the  rights  which  we  call  '  remedial  ^' 

Although  we  propose  to  distinguish  thus  broadly  be-  The  Con- 
tween  topics  which  are  more  usually  grouped  together  obliga^ '^ 
under  the  head  of  '  Obligations,'  we  are  none  the  less  able  *'**^- 
to  make  full  use  of  the  admirable  analysis  of  the  ideas 
conveyed  by  that  term,  which  has  been  so  potent  a  factor 
in  the  history  of  legal  speculation.  '  Obligationum  sub- 
stantia,' says  Paulus  in  a  well-known  passage,  'non  in  eo 
consistit  ut  aliquod  corpus  nostrum  faciat,  sed  ut  alium 
nobis  obstringat  ad  dandum  aliquid  vel  faciendum  vel 
praestandum  ^'  Still  more  familiar  is  the  definition  of 
'  obligatio '  as  '  iuris  vinculum,  quo  necessitate  adstringimur 
alicuius  solvendae  rei,  secundum  nostrae  civitatis  iura*.' 
In  the  fuller  language  of  Savigny,  an  obligation  is  'the 
control  over  another  person,  yet  not  over  this  person  in  all 
respects  (in  which  case  his  personality  would  be  destroyed), 
but  over  single  acts  of  his,  which  must  be  conceived  of  as 
subtracted  from  his  free-will,  and  subjected  to  our  will  ^ ' ; 
or,  according  to  Kant, '  the  possession  of  the  will  of  another, 
as  a  means  of  determining  it,  through  my  own,  in  accord- 

'  Supra,  pp.  139,  161. 

^  Mr.  Bishop  published  in  1889,  at  Chicago,  a  work  entitled  'Com- 
mentaries on  the  non-contract  law,'  which  term  is  explained  to  be  equiva- 
lent to 'Obligationes  ex  delicto.' 

'  Dig.  xliv.  7.  3.  pr.  On  obligations  as  measurable  in  money,  see  Dig. 
xl.  7.  9.  2. 

*  Inst.  iii.  13.  Cf.  ^voxh  ^fxi  Bffffibs  SiKaiov  5i'  ov  tis  avayKd^ercu  Kara  rh 
iiro<pfi\6fi€vop.   Theoph.  iii.  13. 

^  Obligationenrecht,  i.  p.  4.  Obligations  are  considered  by  Bentham 
under  the  title  '  Rights  to  Services.' 


236      PRIVATE    LAW:    RIGHTS   'IN    PERSONAM. 


A  natural 
Obliga- 
tion. 


lura  in 

personam 


CHAP.  xn.  ance  with  the  law  of  freedom,  to  a  definite  act\'  An 
obligation,  as  its  etymology  denotes,  is  a  tie ;  whereby 
one  person  is  bound  to  perform  some  act  for  the  benefit 
of  another.  In  some  cases  the  two  parties  agree  thus  to 
be  bound  together,  in  other  cases  they  are  bound  without 
their  consent.  In  every  case  it  is  the  Law  which  ties  the 
knot,  and  its  untying,  '  solutio,'  is  competent  only  to  the 
same  authority.  There  are  cases  in  which  a  merely  moral 
duty,  giving  rise  to  what  is  called  a  ''natural,'  as  opposed 
to  a  'civil,'  obligation  will  incidentally  receive  legal  re- 
cognition. So  if  a  person  who  owes  a  debt  pays  it  in 
ignorance  that  it  is  barred  by  the  statutes  of  limitation 
he  will  not  be  allowed  to  recover  it  back. 

The  right  which,  looked  at  from  the  point  of  view  of 
the  Law  which  imposes  it,  is  described  as  an  obligation, 
is  described,  from  the  point  of  view  of  the  person  of 
inherence,  as  a  '  ius  in  personam.'  The  difference  between 
a  right  of  this  kind  and  of  the  kind  discussed  in  the 
preceding  chapter  is  obvious  enough. 

When  a  man  owns  an  estate,  a  general  duty  is  laid  upon 
all  the  world  to  refrain  from  trespassing  on  his  land.  If 
he  contracts  with  a  landscape  gardener  to  keep  his  grounds 
in  order  for  so  much  a  year,  then  the  gardener  owes  to 
the  landowner  a  special  duty,  over  and  above  the  duty 
owed  to  him  by  all  the  world  besides.  If  a  surgeon  is 
practising  in  a  town,  while  there  is  a  duty  incumbent  on 
all  not  to  intimidate  patients  from  resorting  to  him,  or 
otherwise  molest  him  in  the  exercise  of  his  profession, 
there  is  no  general  duty  not  to  compete  for  his  practice. 
Any  one  may  legally  estabUsh  a  rival  surgery  next  door. 
Suppose,  however,  that  the  surgeon  has  bought  his  business 
from  a  predecessor,  who,  in  consideration  of  being  well 
paid,  has  covenanted  not  to  practise  within  twenty  miles 
of  the  town  in  question.    Here  the  predecessor,  beyond 


*  Rechtslehre,  Werke,  vii.  p.  70. 


OBLIGATIONS.  237 

and  above  the  duties  owed  by  others  to  his  successor,  owes  chap,  xn 
him  the  special  duty  of  not  competing  with  him  by  the 
exercise  of  his  profession  in  the  neighbourhood.  In  the 
cases  supposed,  the  landowner  and  the  practising  surgeon 
have  respectively  rights  '  in  personam,'  against  the  gardener 
and  the  retired  surgeon,  over  and  above  the  rights  '  in  rem ' 
which  they  enjoy  as  against  every  one  else. 

Most  frequently  antecedent  rights  '  in  personam '  arise.  Arise  in 
as  in  the  above  cases,  out  of  the  agreement  of  the  parties,  ^ays"^ 
They  are  however  often  due  to  some  cause  with  which 
the  parties  have  nothing  to  do.  In  these  cases,  although 
the  person  of  incidence  has  not  undertaken  a  special  duty 
to  the  person  of  inherence,  yet  the  Law  casts  that  duty 
upon  hun,  as  if  he  had  so  undertaken  it.  There  is  a 
ligeance  between  two  individuals,  although  the  chain  that 
binds  them  was  not  linked  by  their  own  hands.  Every 
one  has,  for  instance,  a  right  that  public  ministerial  officers, 
such  as  sheriffs,  registrars,  or  postmen,  shall  exercise  their 
functions  for  his  benefit  when  occasions  arise  entitling 
him  to  their  services.  Similar  rights  '  in  personam '  are 
enjoyed  against  persons  fiUing  certain  private  fiduciary 
positions,  such  as  trustees,  executors,  administrators,  and 
trustees  of  bankrupts.  So  also  against  persons  who  happen 
to  enter  into  certain  transitory  relations  with  others,  such 
as  persons  to  whom  money  has  been  paid  by  mistake, 
or  whose  affairs  have  been  managed  by  a  'negotiorum 
gestor.'  Finally,  against  persons  who  occupy  certain  family 
relationships  to  others,  e.  g.  against  wives  and  children,  and 
vice  versa  against  husbands  and  parents. 

Antecedent  rights  '  in  personam '  are  divisible,  according  May  be 
to  the  investitive  fact  to  which  they  owe  their  origin,  into  ^*der  two 
two    great   classes.     Such    rights  either  arise  or  do  not^^*'^^- 
arise  out  of    a  contract.    In    the    former  case    they  are 
described    as  rights  'ex  contractu.'    In    the    latter  case, 
since  they  arise  from  facts  of  various  kinds  to  which  it 


238 


PRIVATE   LAW:    RIGHTS    'IN    PERSONAM. 


CHAP.  XII.  pleases  the  Law  to  affix  similar  results,  we  shall  describe 
them  as  rights  *  ex  lege ' ;  and  it  will  be  convenient  to 
consider  the  rights  which  arise  thus  variously  before 
treating  of  those  which  arise  solely  from  contract  \ 

Ex  lege.  I.   The   rights  which   we  describe   as  arising  '  ex  lege ' 

were  described  by  the  Roman  lawyers  as  arising  '  quasi  ex 
contractu,'  and  more  simply,  'ex  variis  causarum  figuris"",' 
We  propose  to  subdivide  them  into  four  classes,  which 
we  shall  distinguish  as  i.  the  Domestic;  ii.  the  Fiduciary; 
ill.  the  Meritorious;    and  iv.  the  Official,  respectively. 

Domestic.  i.  We  have  already  discussed  those  rights  '  in  rem,'  i.  e. 
against  the  outside  world,  which  arise  from  the  family 
relations,  and  have  stated  how  such  relations  commence 
and  terminate^;  but  from  the  same  relations  there  arise 
also  rights  '  in  personam,'  i.  e.  of  one  member  of  a  family 
against  another.  Rights  of  this  sort  are  of  a  somewhat 
undefined  character,  and  their  corresponding  duties  consist 
often  in  life-long  courses  of  conduct  rather  than  in  lists 
of  acts  capable  of  accurate  enumeration;  nor  are  they 
reducible  to  a  money  value  \    In  advanced  systems  such 


'  A  distinction,  which  does  not  quite  square  with  the  above,  is  some- 
times drawn  between  obligations  which  arise  from  certain  positions, 
'obUgations  d'^tats,' '  Zustandsobligationen,'  and  those  which  arise  from 
certain  acts,  '  obligations  d'affaires,'  '  Geschaftsobligationen.' 

^  Gaius,  Dig.  xliv.  7.  i.  pr.  Windscheid,  Pandekten,  endeavours  to 
approximate  them  to  contractual  rights.  They  are  sometimes,  but 
improperly,  described  as  'Quasi-contracts.'  See  Ramm,  Der  Quasicon- 
tract,  Leipzig,  1882.  See  also  '  A  selection  of  cases  on  the  law  of  Quasi- 
contract,'  by  PVof.  Keener,  Cambridge,  U.  S.,  1889.  The  author  defines 
'  a  quasi-contract  right,  or  right  of  restoration,'  as  'a  right  to  obtain  the 
restoration  of  a  benefit,  or  the  equivalent  thereof,  conferred  by  the 
claimant,  but  unjustly  retained  by  the  defendant';  stating  that  it  may 
arise  from  'mis-reliance,'  'compulsion'  or  'circumvention.'  It  is,  how- 
ever, obvious  that  the  right  of  a  cestui  qui  trust  against  his  trustee  arises 
in  none  of  these  ways.  Chapter  v  of  the  Indian  Contract  Act  deals  with 
'  Certain  relations  resembling  those  created  by  Contract.' 

'  Supra,  p.  168. 

*  Cf.  Sohm,  Institutionen  (Transl.),  p.  278. 


DOMESTIC.  239 

rights  are  only  to  a  limited  extent  enforced  by  law,  and  chap.  xii. 
that  rather  by  permitted  self-help  than  by  judicial  process. 
It  may  appear  questionable  whether  the  rights  of  husband  Hu.«band 
and  wife  can  be  reckoned  among  those  which  arise  by  ^  ^ 
operation  of  law  rather  than  out  of  contract.  It  is  however 
submitted  that  this  is  the  true  view.  The  matrimonial 
status  is  indeed  entered  upon,  in  modern  times,  in  pur- 
suance of  an  agreement  between  the  parties,  accompanied 
by  certain  religious  or  civil  formalities;  but  its  personal 
incidents  are  wholly  attached  to  it  by  uniform  rules  of 
law,  in  no  sense  depending  on  the  agreement  of  the  parties, 
either  at  the  time  of  the  marriage  or  subsequently.  The 
effect  of  the  contract,  coupled  with  the  other  acts  required 
by  law,  in  producing  a  status,  to  which  rights  of  definite 
kinds  are  incident,  closely  resembles  that  of  a  sale  of 
property.  In  the  one  case,  as  in  the  other,  the  contractual 
act  is  complete,  so  far  as  its  direct  effects  are  concerned, 
when  the  status  has  been  produced,  or  the  ownership 
changed.  The  necessarily  resulting  rights  of  the  person 
newly  invested  with  the  status,  or  newly  become  owner 
of  the  property  respectively,  are  the  creatures  not  of  the 
will  of  the  parties  but  of  fixed  rules  of  law  \  The  rights 
of  husband  and  wife  are  summed  up  in  the  French  code 
as  follows:  *Les  epoux  se  doivent  mutuellement  fidelite, 
secours,  assistance.  Le  mari  doit  protection  a  la  femme, 
la  femme  obeissance  a  son  mari.  La  femme  est  obligee 
d'habiter  avec  le  mari,  et  de  le  suivre  partout  ou  il  le 
juge  a  propos  de  resider ;  le  mari  est  oblige  de  la  recevoir 
et  de  lui  fournir  tout  ce  qui  est  necessaire  pour  les  besoins 
de  la  vie,  selon  ses  facultes  et  son  etat^.'  The  rights  of 
a  husband  according  to  Enghsh  law,  as  against  his  wife, 


'  See  the  remarks  of  Hegel,  Phil,  des  Rechts,  §  75,  on  the  treatment  by 
Kant,  Rechtslehre,  Werke,  vii.  p.  76,  of  marriage  as  an  obligatory 
contract.  The  nature  of  marriage  was  discussed  in  Niboyet  v.  Niboyet, 
L.  II.  4.  P.  D.  9. 

^  Code  Civil,  arts.  212-214. 


240       PRIVATE    LAW:     RIGHTS   'IN    PERSONAM.' 


CHAP.  XII.  seem  to  be  that  she  shall  associate  with  him,  in  default  of 
which  he  can  petition  for  'restitution  of  conjugal  rights,' 
and  that  she  shall  not  commit  adultery,  in  which  case  he 
may,  by  obtaining  a  divorce,  deprive  her  of  any  claim  to 
his  society  or  support.  He  might  formerly  have  chastised 
her  for  levity  of  conduct,  and  in  quite  recent  times  was 
allowed  to  restrain  her  personal  liberty,  but  his  right  so  to 
do  was  first  expressly  negatived  by  a  decision  of  the  Court 
of  Appeal  in  the  year  i89i\  A  wife  also  may  petition 
against  her  husband  for  'restitution  of  conjugal  rights ^' 
or  for  a  divorce.  A  decree  for  'restitution  of  conjugal 
rights'  is  no  longer  enforceable  by  attachment ^ 

A  parent  acquires  on  the  birth  of  a  child  a  right,  which 
he  may  enforce  by  moderate  chastisement  or  restraint,  of 
controlling  his  actions  while  of  tender  years.  Under  some 
systems  a  child  has  a  right  to  be  supported  by  his  parents, 
and  a  parent  to  be  supported  by  his  children.  Under 
the  French  Code,  a  necessitous  son-in-law  may  insist  on 
being  maintained  by  his  father-in-law*;  but  a  judgment 
in  accordance  with  this  provision  having  recently  been 
obtained  from  the  French  Courts,  the  American  Courts 
refused  to  give  effect  to  it  in  the  United  States,  as  being 
contrary  to  the  policy  of  the  laws  of  that  country'. 

The  relation  of  guardian  and  ward  is  an  artificial  imita- 
tion of  that  of  parent  and  child,  and  is  entirely  regulated 
by  law.    Another  artificial  relationship,  that  of  '  patronus ' 


Parent 
and  child 


Guardian 
and  ward 


*  R.  V.  Jackson  [1891]  i  Q.  B.  671. 

'  On  which  see  Orme  v.  Orme,  2  Addams,  382.  There  seems  to  have 
existed  in  the  old  French  law  a  proceeding  by  which  a  wife  might  petition 
*  pour  etre  embesoign^.' 

'  In  Weldon  v.  Weldon,  L.  R.  9  P.  D.  52,  the  cases  upon  this  subject 
were  reviewed,  and  an  attachment  was  reluctantly  granted  by  Sir  J. 
Hannen.  By  47  &  48  Vict.  c.  68  disobedience  to  an  order  for  restitu- 
tion of  conjugal  rights  is  no  longer  punishable  by  attachment,  but  is 
a  ground  for  judicial  separation. 

*  Code  Civil,  art.  206. 

'  Journal  du  Droit  Int.  Priv^,  t.  vi.  p.  22. 


FIDUCIARY.  241 

and  '  libertus,'  is  now  obsolete ;  as  is,  for  most  purposes,   chap.  xn. 
tliat  of  feudal  lord  and  vassal. 

ii.  Express  trusts  were  in  Roman  law  created  only  by  Fiduciary, 
an  act  of  a  testamentary  character.  They  were  requests 
to  the  heir,  or  to  a  legatee,  to  hand  over  the  inheritance, 
or  portions  of  the  property  included  in  it,  to  the  person 
intended  to  be  benefited,  and  were  resorted  to  in  order  to 
evade  certain  stringent  rules  which  beset  the  institution 
of  a  legal  heir  and  the  bequest  of  legacies  properly  so 
called. 

According  to  the  law  of  England,  trusts  may  be  created  Trusts. 
inter  vivos  as  well  as  by  testament,  and  their  history  is 
a  curious  one,  beginning,  like  that  of  the  Roman  'fidei- 
commissa,'  with  an  attempt  to  evade  the  law.  The  Statutes 
of  Mortmain,  passed  to  prevent  the  alienation  of  lands 
to  religious  houses,  led  to  the  introduction  of  'uses,'  by 
which  the  grantor  alienated  his  land  to  a  friend  to  hold 
'  to  the  use '  of  a  monastery,  the  clerical  chancellors  giving 
legal  validity  to  the  wish  thus  expressed.  Although  this 
particular  device  was  put  a  stop  to  by  15  Ric.  II.  c.  5, 
'  uses '  continued  to  be  employed  for  other  purposes,  having 
been  found  more  malleable  than  what  was  called,  by  way 
of  contrast,  'the  legal  estate.'  They  offered  indeed  so 
many  modes  of  escaping  the  rigour  of  the  law,  that,  after 
several  other  statutes  had  been  passed  with  a  view  of 
curtailing  their  advantages,  the  27  Hen.  VIII.  c.  10  enacted 
that,  when  any  one  was  seised  to  a  use,  the  legal  estate 
should  be  deemed  to  be  in  him  to  whose  use  he  was  seised. 
The  statute  did  not  apply  to  trusts  of  personal  property, 
nor  to  trusts  of  land  where  any  active  duty  was  cast 
upon  the  trustee,  nor  where  a  use  was  limited  '  upon  a  use,' 
i.  e.  where  the  person  in  whose  favour  a  use  was  created 
was  himself  to  hold  the  estate  to  the  use  of  some  one 
else.  There  continued  therefore  to  be  a  number  of  cases 
in  which,  in  spite  of  the  'Statute  of  Uses,'  the  Court  of 


242       PRIVATE    LAW:    RIGHTS   'IN    PERSONAM.' 

CHAP.  XII.  Chancery  was  able  to  carry  out  its  policy  of  enforcing 
what  had  otherwise  been  merely  moral  duties.  The  system 
thus  arising  has  grown  to  enormous  dimensions,  and  trusts, 
which,  according  to  the  definition  of  Lord  Hardwicke, 
are  'such  a  confidence  between  parties  that  no  action  at 
law  will  lie,  but  there  is  merely  a  case  for  the  consideration 
of  courts  of  equity  V  are  inserted  not  only  in  wills,  but 
also  in  marriage  settlements,  arrangements  with  creditors, 
and  numberless  other  instruments  necessary  for  the  comfort 
of  famihes  and  the  development  of  commerce^. 

Under  a  system  of  trusts,  the  person  of  inherence, '  fidei- 
commissarius,' '  cestui-qui-trust,'  enjoys  a  right  'in  personam' 
against  the  person  of  incidence,  '  flduciarius,' '  trustee.' 

Very  similar  rights  are  enjoyed  against  executors, 
administrators,  'heredes,'  trustees  of  bankrupts,  and  co- 
proprietors.  Thus  a  legatee  and  a  creditor  of  the  estate 
of  a  testator  have  rights  to  be  paid  the  amount  of  the 
legacy  and  the  debt  respectively  by  the  executor.  The 
creditor  of  a  bankrupt  has  a  right  against  the  trustee 
in  bankruptcy  to  be  paid  out  of  the  assets.  Co-heirs, 
or  other  joint  owners,  irrespectively  of  partnership,  have 
rights  against  one  another  for  the  due  management  of 
the  property;  and  similar  rights  result  from  the  relation 
of  proprietor  and  usufructuary,  and  from  '  Bannrechte  ^' 
Implied  In  many  cases  a  fiduciary  relation   is   implied  by  law. 

trusts 

Thus,  according  to  the  law  of  England,  where  land  is  con- 
veyed on  trusts  not  yet  declared,  the  alienee  is  a  trustee 
for  the  alienor.  So  also  the  intending  vendor  of  land, 
after  executing  an  agreement  for  a  sale  of  it,  holds  it  in 
trust  for  the  intending  purchaser,  and  a  person  in  whose 

*  2  Atk.  612.  For  a  number  of  attempts  better  to  define  a  Trust,  see 
W.  G.  Hart  in  L.  Q.  R.,  xv.  p.  294. 

^  By  29  Car.  II.  c.  3.  §  9,  an  express  trust  relating  to  land  must  be  in 
writing.  In  Scots  law  a  trust  is  said  to  be  '  of  the  nature  of  depositation.' 
Ersk.  Inst.  iii.  tit.  i.  §  32,  i.  e.  of  a  contractual  character.  So  also  trusts 
are  dealt  with  in  American  books  on  Contract.  Cf.  Pollock,  ed.  vii.  p.  208. 

^  Supra,  p.  205;  cf.  Savigny,  System,  iii.  p.  338. 


MERITORIOUS.  243 

name   property  is  bought  with  the  money  of  another  is    chap.  xii. 
trustee  for  that  other.    It  is  a  principle  of  English  law 
that  a  trust  shall  never  fail  for  want  of  a  trustee. 

Some  of  the  above  fiduciary  relations  are  an  obvious 
result  of  the  acceptance  of  the  view  expressed  in  the 
maxim  'lure  Naturae  aequum  est  neminem  cum  alterius 
detrimento  et  iniuria  fieri  locupletiorem  *.'  Hence  also 
the  right  of  one  who  has  paid  money  under  a  mistake 
to  recover  it  back  again,  a  right  which  in  English  law 
is  expressed  by  saying  that  the  causeless  receiver  is 
a  '  trustee '  for  the  mistaken  payer.  In  this  and  in  a 
nmltitude  of  similar  cases  the  money  might  be  recovered 
as  having  been  'received  to  the  use'  of  the  person 
claiming  it^. 

iii.  According  to  Roman  law,  a  '  negotiorum  gestor,'  or  Meri- 
person  who  volunteered  to  render  some  necessary  service 
to  property,  or  to  a  business,  in  the  absence  of  its  owner, 
had  a  claim  to  be  compensated  by  the  owner  for  the 
trouble  he  had  taken,  and  the  owner  had  also  a  claim 
for  any  loss  which  had  resulted  from  the  interference 
of  the  'negotiorum  gestor V  Of  a  similar  character  are 
the  rights  given  by  EngUsh  law  to  salvors  of  ships  in 
distress,  to  recaptors  of  ships  which  have  been  made 
prize  by  the  enemy,  and  to  those  who  have  supplied 
necessaries  to  persons  who,  being  lunatics  ^  or  in  a  state 
of  drunkenness,  were  incapable  of  entering  into  an  agree- 
ment. '  A  contract,'  it  has  been  said, '  may  be  implied  by 
law  in  many  cases  even  where  the  other  party  protested 


*  Dig.  I.  17.  206;  cf.  Savigny,  Obligationenrecht,  i.  p.  26.  See  also 
Keener,  Quasi-contract,  pp.  19,  20,  24;  Turner  v.  Webster,  24  Kansas,  38. 

^  See  the  long  note  upon  the  common  count  for  'money  had  and 
received'  in  Bullen  and  Leake's  'Precedents  of  Pleadings.'  Cf.  the 
recognition  in  the  U.  S.  of  an  equitable  claim  for  improvements  made 
under  a  mistaken  belief  of  ownership  of  land.  Bright  v.  Boyd,  i  Story, 
478,  2  Story,  608. 

'  So  in  Scots  law.  *  Cf.  infra,  p.  343. 

JEla 


244       PRIVATE    LAW:    RIGHTS   'IN    PERSONAM.' 

CHAP.  xii.  against  any  contract.  The  law  says  he  did  contract 
because  he  ought  to  have  done  so.  On  that  ground 
the  creditor  might  recover  against  him  when  sober  for 
necessaries  supplied  to  him  when  drunk  .  ,  .  the  law 
makes  a  contract  for  the  parties  *.'  In  a  recent  case,  the 
Court,  while  justly  complaining  of  the  ambiguous  use  in 
these  cases  of  the  term  'implied  contract,'  employed  the 
.  perhaps  more  objectionable  term  'implied  obligation  I' 
The  obligation  attaches  by  express  judicial  declaration, 
whatever  may  be  the  ground  for  it.  'This  title  to  in- 
demnity,' says  Bentham, '  is  founded  upon  the  best  reasons. 
Grant  it,  and  he  by  whom  it  is  furnished  will  still  be 
a  gainer ;  refuse  it,  and  you  leave  him  who  has  done  the 
service  in  a  condition  of  loss.  Such  a  regulation  is  less 
for  the  benefit  of  him  who  receives  the  compensation  than 
for  the  benefit  of  those  who  need  the  service.  It  is  a 
promise  of  indemnity  made  beforehand  to  every  man  who 
may  have  the  power  of  rendering  a  burdensome  service, 
in  order  that  a  prudent  regard  to  his  own  personal  interest 
may  not  come  into  opposition  with  his  benevolence.  Three 
precautions  must  be  observed  in  arranging  the  interests 
of  the  two  parties.  First,  to  prevent  a  hypocritical 
generosity  from  converting  itself  into  tyranny,  and 
exacting  the  price  of  a  service  which  would  not  have 
been  accepted  had  it  not  been  supposed  disinterested. 
Secondly,  not  to  authorise  a  mercenary  zeal  to  snatch 
rewards  for  services  which  the  person  obliged  might  have 
rendered  to  himself,  or  have  obtained  elsewhere  at  a  less 
cost.  Thirdly,  not  to  suffer  a  man  to  be  overwhelmed 
by  a  crowd  of  helpers,  who  cannot  be  fully  indemnified 


*  Per  Pollock,  C.  B.,  in  Gore  v.  Gibson,  13  M.  &  W.  623.  As  to  lunatics, 
see  Baxter  v.  Portsmouth,  5  B.  &  C.  170.  Cf.  the  liability  of  a  husband 
for  necessaries  for  a  wife  who  is  wrongfully  obliged  to  live  separate  from 
him.   Wilson  v.  Glossop,  20  Q.  B.  D.  354.     Cf.  infra,  ch.  xiv. 

^  Re  Rhodes,  44  Ch.  Div.  94. 


OFFICIAL.  245 

without  counterbalancing  by  an  equivalent  loss  the  whole   chap,  xil 
advantage  of  the  service  \' 

The  rule  of  English  law  upon  the  point  was  thus 
explained  by  Lord  Justice  Bowen:  'liabilities  are  not 
to  be  forced  upon  people  behind  their  backs,  any  more 
than  you  can  confer  a  benefit  upon  a  man  against  his 
will.  There  is  an  exception  to  this  proposition  in  the 
maritime  law  ^' 

iv.  Any  member  of  the  community  who  becomes  entitled  Official, 
by  circumstances  to  call  upon  a  public  official  to  exercise 
his  functions  on  his  behalf,  acquires  thereupon  a  right '  in 
personam'  against  such  official  to  that  effect.  This  right, 
in  so  far' as  it  is  enforceable  by  action  against  the  official, 
is  a  private  law  right.  Such  rights  are  enforced  in 
English  law  against  all  ministerial  officers,  as  collectors 
of  customs,  registrars  of  births,  bishops,  lords  of  manors, 
sheriffs,  or  postmen  ^ ;  but  high  officials,  such  as  the  Post- 
master-General, are  not  responsible  for  the  negligence  of 
their  subordinates. 

In  Roman  law,  a  suitor  had  a  right,  enforceable  by 
action,  that  a  judge  should  decide  his  cause  properly.  The 
judge  was  liable  '  si  litem  suam  fecerit,'  and  this  was  the 
case  when  he  gave  a  wrong  decision,  either  corruptly,  'si 
evidens  arguatur  eius  vel  gratia  vel  inimicitia,  vel  etiam 
sordes  ^'  or  from  ignorance,  '  licet  per  imprudentiam  ^.' 
According  to  the  law  of  England,  however,  no  person 
holding  a  judicial  office,  be  he  judge,  juryman,  coroner,  or 


'  Dumont's  Theory  of  Legislation,  Hildreth's  translation,  p.  191. 

^  Falke  v.  Scottish  Imperial  Insurance  Co.,  34  Ch.  D.  234.  In  the  same 
case  the  L.  J.  criticises  the  note  to  Lampleigh  v.  Brathwaite  in  Smith's 
L.  C,  which  lays  down  that  if  a  party  adopts  and  enjoys  a  benefit,  his 
consent  will  he  presumed.  'If  that  were  the  law,'  he  says,  'salvage 
would  prevail  at  common  law  as  well  as  in  maritime  law,  which  it 
certainly  does  not.' 

3  See  Ashby  v.  White,  i  Smith,  L.  C. 

*  Dig.  V.  I.  15.  '  Dig.  xliv.  7.  5. 


246       PRIVATE    LAW:    RIGHTS    'IN    PERSONAM' 

CHAP.  XII.   arbitrator,  unless  he  exceeds  the  bounds  of  his  authority, 
is  hable  for  his  judicial  acts. 

Special  duties  are  sometimes  imposed  on  particular 
classes  of  persons,  in  which  case  any  individual  who  has 
a  right  to  call  for  the  performance  of  those  duties  possesses 
a  right  'in  personam'  against  the  person  upon  whom 
such  performance  is  made  incumbent.  Thus,  according  to 
English  law,  an  innkeeper,  having  room  in  his  inn,  is 
bound  to  receive  every  well-conducted  traveller  who  is 
ready  to  pay  for  his  entertainment  \  and  a  *  common 
carrier'  is  bound  to  convey  all  suitable  goods  for  which 
he  has  room  and  the  carriage  of  which  is  duly  paid. 
Duties  of  this  sort  are  often  created  by  statute.  So,  it 
having  been  enacted  that  shipowners  must  keep  medicines 
on  board  for  the  crew,  it  was  held  that  any  sailor  who 
,  suffers  from  a  neglect  of  this  duty  may  sue  for  the 
damage  he  has  sustained^.  Under  the  Lands'  Clauses 
Consolidation  Act,  1845,  and  similar  statutes,  a  relation- 
ship of  vendor  and  purchaser  may  be  constituted  Avithout 
the  concurrence  of  the  owner  of  the  land,  by  the  exercise 
of  the  compulsory  powers  conferred  by  these  acts  upon 
railway  and  other  companies  ^  The  desirability  has  been 
suggested  of  recognising  a  right,  which,  if  recognised, 
would  belong  to  the  class  now  under  consideration,  but 
is  probably  unknoAvn  to  any  system  of  law.  'When 
a  person  is  in  danger,  why,'  asks  Bentham,  '  should  it 
not  be  the  duty  of  every  man  to  save  another  from 
mischief,  when  it  can  be  done  without  prejudicing  himself, 
as  well  as  to  abstain  from  bringing  it  on  him  *  ? ' 


*  But  see  Brown  v.  Brandt  [1902]  i  K.  B.  696.  A  traveller  may  by 
lapse  of  time  become  a  mere  lodger  and  lose  his  right  to  remain. 
Lamond  v.  Richard  [1897]  i  Q.  B.  541. 

^  Couch  V.  Steel,  3  E.  &  B.  415;  sed  vide  Atkinson  v.  Newcastle  Water^ 
works  Co.,  L.  R.  2  Ex.  Div.  441. 

'  Cf .  Sir  Edward  Fry's  Specific  Performance  of  Contracts,  3rd  edit.  p.  57. 

♦  Works,  i.  p.  148. 


EX   CONTRACTU.  247 

Under  the  head  of  rights  available  against  a  definite  chap.  xn. 
person,  which  person  is  specifically  ascertained  before  any^"'"*^^  , 
infringement  of  the  right,  one  might  be  tempted  to  place  on  con- 
those  rights  the  violations  of  which  have  sometimes  been 
called  in  English  Law  'torts  founded  on  contract.'  Actions 
against  surgeons  for  want  of  skill,  against  carriers  for 
want  of  care,  and  the  like,  have  sometimes  been  treated 
as  if  brought  in  pursuance  of  a  right  existing  against 
persons  pursuing  such  vocations,  independently  of  any 
contract.  It  has  been  said,  for  instance,  that  'the  right 
which  a  passenger  by  railway  has  to  be  carried  safely 
does  not  depend  on  his  having  made  a  contract,  but  that 
the  fact  of  his  being  a  passenger  casts  a  duty  on  the 
Company  to  carry  him  safely*';  and  this  is  perhaps 
the  accepted  view.  The  simpler  view,  and  one  which 
does  not  lack  authority  ^  would  be  to  treat  all  such  rights 
as  contractual.  What  is  called,  with  reference  to  carriers, 
the  '  custom  of  the  realm,'  is  really  a  term  implied  by  law 
in  the  contract  of  carriage.  Any  one  taking  a  railway 
ticket  knows,  or  is  presumed  to  know,  what  interpretation 
is  put  by  the  law  upon  the  agreement  with  the  Company 
into  which  he  enters  by  the  simple  act  of  taking  a  ticket. 
He  knows  that,  in  return  for  his  money,  the  Company 
not  only  undertakes  to  put  him  into  a  train  and  to  start 
it  for  its  destination,  but  also  undertakes  to  neglect  no 
reasonable  precautions  for  ensuring  his  safety  during  the 
journey.  If,  through  the  negligence  of  the  Company, 
what  is  called  an  accident  occurs  on  the  road,  and  the 
passenger's  leg  is  broken,  he  may  fairly  say  that  the 
Company  is    just  as   much   guilty   of   a   breach  of    their 


'  Per  Blackburn,  J.,  in  Austin  r.  Great  Western  Railway  Co.,  L.  R. 
^Q.  B.  447.  SoinFfoulkesv.  Metr.Distr.  Ry.Co.,5C.  P.D.  157;  Taylor 
?>.  Manchester,  Sheffield  and  Lincolnshire  Railway  Co.,  1895, 1  Q.  B.  (C.  A.) 
134;  Kelly  V.  Metr.  Distr.  Ry.  Co.,  ib.  944;  Turner  v.  Stallibrass  [1898] 
I  Q.  B.  56;  Sachs  v.  Henderson  [1902]  i  K.  B.  (C.  A.)  616.  Cf.  Harvard 
Law  Review,  ix.  p.  215. 

'  E.  g.  Alton  I'.  Midi.  Ry.  Co.,  19  C.  B.  N.  S.  213. 


248      PRIVATE   LAW:    RIGHTS   'IN   PERSONAM.' 

CHAP.  xii.  contract  with  him  as  if  they  had  stopped  their  train 
half  way,  and  had  told  him  that  he  must  accomplish  the 
rest  of  the  distance  as  best  he  could. 

Ex  Con-  II.  By  far  the  most  important  class  of  rights  'in  per- 

^^  ^  sonam '  are  those  which  arise  from  that  particular  species 

of  act  which  is  called  a  'Contract'  We  have  already 
explained  that  acts  which  are  directed  to  the  production 
of  a  legal  result,  '  Rechtsgeschaf te,'  may  be  either  one- 
sided, when  the  will  of  one  party  only  is  active,  or  two- 
sided,  when  there  is  a  concurrence  of  two  or  more  wills 
in  producing  a  modification  of  the  rights  of  the  parties 
concerned.  Such  a  two-sided  act,  having  for  its  function 
the  creation  of  a  right,  is  a  '  Contract,'  in  the  widest  sense 
of  that  term,  in  which  it  would  include  not  only  the 
creation  of  rights  '  in  personam '  but  also  assignments  of 
property,  marriage,  and  other  transfers  or  creations  of 
rights  'in  rem  .' 


*  Supra,  pp.  ii8,  209.  So  in  English  law  'contract  of  sale'  is  used  to 
describe  both  a  sale  out  and  out,  or,  as  it  is  sometimes  described,  'a 
bargain  and  sale,'  and  a  contract  to  sell.  A  similar  ambiguity  lurks 
in  the  term  'marriage  contract,'  which  may  denote  either  the  marriage 
itself,  or  a  contract  to  marry  hereafter.  The  term  is  sometimes  em- 
ployed in  a  very  misleading  manner.  Thus,  by  '  The  Married  Women's 
Property  Act,  1882,'  it  is  provided  that '  the  word  "  contract"  in  this  Act 
shall  include  the  acceptance  of  a  trust,  or  of  the  office  of  executrix  or 
administratrix.'  So  it  has  been  held  that  the  incorporation  of  a  College 
is  a '  contract,'  and  therefore,  under  the  Constitution  of  the  United  States, 
cannot  be  interfered  with.  Dartmouth  College  v.  Woodward,  4  Wheat. 
518.  (On  the  attempts  made  by  almost  every  State  of  the  Union  to  evade 
the  rule  thus  laid  down,  see  27  American  Law  Review,  p.  857,  and 
29  lb.  p.  236.  On  Trusts  in  American  textbooks,  see  supra,  p.  242, 
n.  2.)  There  is  no  contract  to  pay  for  the  compulsory  attendance  of 
a  child  at  school.  London  School  Board  v.  Wright,  12  Q.  B.  D.  578. 
'A  statute  liability  wants  all  the  elements  of  a  contract,  consideration 
and  mutuality,  as  well  as  the  assent  of  the  party,'  McCoun  v.  R.  R.  Co., 
50  N.  Y.  176. 

On  the  necessity  of  acceptance  for  complete  alienation  in  Roman  law, 
see  supra,  p.  209.  In  English  law  acceptance  is  not  necessary.  See 
Butler  and  Baker's  Case,  3  Rep.  25;  Thompson  v.  Leach,  3  Mod.  296; 
Siggers  v.  Evans,  5  E.  &  B.  367;  Standing  v.  Bowring,  31  Ch.  D.  283. 


OBLIGATORY   CONTRACT.  249 

Thus  if  a  man  goes  into  a  shop  and  buys  a  watch  for   chap.  xu. 

ready   money,   a   contract  has  taken  place.     The  watch- '^^'^ 

senses  of 
maker  and   his    customer   have   united   in   a  concordant  Contract. 

expression  of  will,  and  the  result  has  affected  once  for  all 

their  legal  rights.    The  customer  has,  according  to  English 

law\  become  owner    of    the  watch,  the  watchmaker  of 

its  price,  and  the  transaction  is  at  an  end.    But  suppose 

that,  instead  of  the  instantaneous  sale  of  the  watch,  the 

agreement  had  been  merely  for  its  purchase  at  a  future 

day,  in  this  case  also  there  is  a  contract,  but  the  right 

to  which  it  gives  rise  is  not  a  vested  right  of  ownership 

in  the  watch,  but  an  outstanding,  or  continuing,  right  in 

the   customer   to   buy  it  at  the  time   and  for  the  price 

agreed  upon,  with   a  correlative  right  in  the  shopkeeper 

to  receive  the  price   in   due  course.    In  the  former  case, 

the  contract  has  given  rise  to   rights   'in  rem,'  and  in  so 

doing  its   force  is  instantaneously  spent.     In  the  latter 

case  the  results  of  the  contract  are  deferred.    It  produces 

merely  claims,  or  rights  '  in  personam,'  which  continue  to 

be  operative  tUl  the  thmg  agreed  upon  is.  performed. 

We  are  concerned   in  the   present  chapter    only   with  Obligatory 
that  narrower,  and  more   usual,   sense  of  the   term  con-  ^^^  ^^  ' 
tract,  which  restricts  it  to   signify  such  a  two-sided  act 
as  gives  rise  to  rights  'in  personam^.' 

In  this  sense  it  is  defined  by  Savigny  as  'the  union 
of  several  in  an  accordant  expression  of  will,  with  the 
object  of  creating  an  obligation  between  them'';  by 
an  old  English  authority  as  'a  speech  between  two 
parties  whereby  something  is  to  be   done*';  by  Pothier 


*  On  the  causes  which  led  to  the  adoption  of  this  rule,  which  seems 
not  to  have  been  fully  established  even  in  Elizabeth's  reign,  see  Cochrane 
V.  Moore,  25  Q.  B.  D.  (C.  A.)  65. 

'  This  is  by  some  writers  maintained  to  be  the  only  proper  sense  of  the 
term,  e.  g.  Vangerow,  Pand.  i.  §  121.  An  '  Obligatorischer  Vertrag'  is 
sometimes  also  described  as  a  '  Schuldvertrag.' 

'  Obligationenrecht,  ii.  p.  8.     Cf.  Puchta,  Inst.  iii.  p.  89. 

*  The  Mirrour. 


250      PRIVATE    LAW:    RIGHTS   'IN    PERSONAM.' 

CHAP.  XII.  as  'I'espece  de  convention  qui  a  pour  objet  de  former 
quelque  engagement  ^ ' ;  by  M.  Ahrens  as  '  le  consentement 
exprime  de  plusieurs  personnes  a  I'effet  de  creer  entre 
elles  un  rapport  obligatoire  sur  un  objet  de  droit  ^.'  '  When,' 
said  Vice- Chancellor  Kindersley,  'both  parties  will  the 
same  thing,  and  each  communicates  his  will  to  the  other, 
with  a  mutual  engagement  to  carry  it  into  effect,  then  an 
agreement  or  contract  between  the  two  is  constituted  I' 
It  is  an  expression  of  agreement  entered  into  by  several, 
by  which  rights  *  in  personam '  are  created  available  against 
one  or  more  of  them. 

A  contract  can  impose  no  liabilities  upon  any  one  who 
is  not  a  party  to  it.  Nor,  as  a  general  rule,  can  rights  be 
originally  acquired  under  it  by  such  an  one.  Any  doubt 
which  may  have  existed  as  to  the  English  law  upon  this 
point  was  set  at  rest,  one  might  have  supposed,  some  time 
smce,  by  a  decision  to  the  effect  that  there  is  no  authority 
for  holding  that  rights  can  be  acquired  by  third  parties 
under  a  contract  unless  by  the  creation  of  a  trust  *.  The 
federal  Courts  of  the  United  States  seem,  on  the  whole,  to 
take  the  same  view  \  but  many  of  the  States  (though  not 
Massachusetts  or  Michigan)  have  followed  with  approval 
a  New  York  case,  which  establishes  an  exception  to  the 
rule  in  favour  of  certain  beneficiaries  under  a  contract  to 
which  they  are  not  parties ";  and  a  recent  English  case  would 
seem  to  carry  the  exception  still  further  ^ 

Cause  and         It  is  necessary  carefully  to  distinguish  between  the  two- 
sided   act  itself   and   the  results  to  which  it  gives  rise. 

'  Oblig.  art.  i.  *  Cours,  ii.  p.  226. 

'  Haynes  v.  Haynes,  i  Dr.  &  Sm.  433. 

*  Tweddle  v.  Atkinson  (1861),  1  B  &  S.  393.  Cf.  Re  Rotherham,  Alum 
and  Chemical  Co.  (1883),  25  Ch.  D.  iii. 

'  E.  A.  Harriman,  Elements  of  the  Law  of  Contracts  ( 1 89  6)  ,pp.  2 1 5-  228. 

•  Lawrence  ?'.  Fox,  20  X.  Y.  268.  On  this  question,  see  the  German 
Civil  Code,  328,  recognising  the  possibility  of  so  framing  a  contract  as 
to  give  to  a  stranger  to  it  a  right  of  action  for  its  breach.  On  the  com- 
parative law  of  this  question,  see  S.  Williston,  in  Harvard  L.  R.  xvi.  p.  43. 

'  The  Satanita  [1895]  P.  (C.  A.)  248  [1897]  A.  C.  59. 


OBLIGATORY   CONTRACT.  25 1 

The  act  alone  is  the  contract,  the  resulting  contractual  chap.  xn. 
relation  is  quite  a  different  thing;  although,  from  the 
want  of  an  appropriate  terminology,  the  two  things  are 
sometimes  confused  with  one  another  in  English  law. 
Thus  we  talk  of  'assigning  a  contract,'  while  what  is 
really  meant  is  the  assignment  of  the  rights  and  liabilities 
which  arise  out  of  the  contract.  In  the  language  of 
Roman  law,  the  two  ideas  are  distinguished  with  the 
utmost  precision.  The  'contractus'  is  one  thing,  the 
'obMgatio  ex  contractu'  is  another \ 

It  has  been  paradoxically  maintained  by  more  than  oneEnforce- 
writer  of  eminence  that  no  assistance  should  be  given  ™^"  ' 
by  law  to  the  enforcement  of  agreements,  on  the  ground 
that  they  should  be  entered  into  only  with  those  whose 
honour  can  be  trusted;  and  the  laws  of  Charondas  and 
of  the  ancient  Indians  are  stated  to  have  proceeded  upon 
this  principle^.  The  contrary  view,  embodied  in  the 
maxim,  'pacta  sunt  servanda,'  Kupta  c'vat  o  n  av  Ircpos 
€T€pw  o/xoXoyja-ri  ^,  even  ajiart  from  such  solemnities  as  we 
shall  have  occasion  shortly  to  mention,  has,  it  is  hardly 
necessary  to  say,  long  ago  received  the  adhesion  of  the 
civilised  world  ^ 

The  State  lends  its  force  to  assure  the  performance  of 
those  promises  of  which  it  thinks  fit  to  take  cognisance. 


•  The  lack  of  terminology  to  express  this  distinction  must  be  responsible 
for  the  EngUsh  barbarism  a  'Contract  of  Record,'  as  descriptive  of, 
among  other  things,  a  judgment.  'A  judgment  is  a  contract  of  the 
highest  nature  known  to  the  law,'  Taylor  v.  Root,  4  Keyes  (N.  Y.)  335. 
Cf .  3  Comm.  1 60.  But '  a  judgment  is  no  contract,  nor  can  be  considered 
in  the  light  of  a  contract;  for  '  iudicium  redditur  in  invitum,'  Bidleson  v. 
Whytel,  3  Burr.  1545. 

^  OvTOi  yap  irapaxpVf^a  Kf\fvov(ri  SiS6vai  Kal  Xa/xfidptiv,  ikv  Se  ris  ^tffrf{ip, 
fi)]  (Tvai  SIktiv,  avThv  yap  alriav  elvai  rrjs  aSiK(as.  Stob.  Flor.,  tit.  44.  21; 
Strabo,  xv.  p.  709;   cf.  Arist.  Eth.  Nic.  viii.  15.  6,  ix.  i.  9. 

'  Demosth.  in  Euerg.  p.  1 1 62.  '  Quid  enim  tam  congruum  fidei  humanae 
quam  ea  quae  inter  eos  placuerunt  servare?'  Dig.  ii.  14.  i.  Cf.  Puffen- 
dorf,  De  Off.  Hominis  et  Civis,  i.  c.  9.  §  3. 

*  By  the  Constitution  of  th-?  United  States,  '  no  State  shall  pass  .  .  . 
any  law  impairing  the  obligation  of  contracts.'   Art.  i.  §  ro. 


252        PRIVATE    LAW:    RIGHTS    'IN    PERSONAM.' 


CHAP.    XII. 


Mr,  Jus- 
tice 

Holmes' 
theory. 


Savigny's 
analysis  of 
a  contract. 


This  it  endeavours  to  do  by  putting  some  sort  of  pres- 
sure upon  the  will  of  the  promisor,  which  is  therefore 
indubitably  so  far  subjected  to  the  will  of  the  promisee. 
The  fact  that  the  pressure  thus  applied  may  often  fail  of 
its  effect  has  given  rise  to  an  ingenious  inversion  of  the 
theory  of  contract.  According  to  Mr.  Justice  Holmes,  a 
contract  may  be  regarded  as  'the  taking  of  tlie  risk.'  'The 
only  universal  consequence  of  a  legally  binding  promise 
is,  that  the  law  makes  the  promisor  pay  damages  if  the 
promised  event  does  not  come  to  pass.  In  every  case 
it  leaves  him  free  from  interference  untU  the  time  for 
fulfilment  has  gone  by,  and  therefore  free  to  break  his 
contract  if  he  chooses  \'  But,  as  the  able  advocate  of 
this  view  is  compelled  to  admit,  'when  people  make  con- 
tracts they  usually  contemplate  the  performance  rather 
than  the  breach';  nor  can  it  be  seriously  maintained  that 
the  performance  of  a  contract  is  more  optional  than  that 
of  any  other  legal  duty.  Libel  or  assault,  equally  with 
breach  of  contract,  are  possible  to  any  one  who  is  pre- 
pared to  be  answerable  in  damages  for  the  indulgence  of 
a  taste  for  defamation  or  violence. 

An  obligatory  contract  is,  as  we  have  seen,  a  species  of 
agreement.  But  many  agreements  produce  no  legal  effect 
upon  the  relations  of  the  parties  one  to  another.  It  will 
therefore  be  necessary  to  enquire  more  minutely  into  the 
characteristics  of  those  consensual  acts  which  are  recog- 
nised by  law  as  giving  rise  to  obligations. 

Savigny's  analysis  of  contract,  substantially  accepted 
by  the  majority  of  the  more  recent  German  authorities, 
is  to  the  following  effect.  Its  constituent  elements  are, 
he  says:  (i)  several  parties,  (ii)  an  agreement  of  their 
wills  (sie  miissen  irgend  etwas,  und  zwar  Beide  dasselbe, 
bestimmt  gewoUt  haben),  (iii)  a  mutual  communication  of 


'  The  Common  Law,  p.  301.  In  support  of  this  view  he  cites,  in  Har- 
vard L.  R.  X.  p.  462,  Lord  Coke  in  Bromage  v.  Genning,  i  Rolle  Rep.  368. 


AGREEMENT    IN    CONTRACT.  253 

this  agreement  (sie  miissen  sich  dieser  Uebereinstimmung  chap.  xii. 
bewusst  geworden  seyn,  das  heisst  der  Wille  muss  gegen- 
seitig    erklart  worden  seyn,   (iv)   an  intention  to  create 
a  legal  relation  between  the  parties  ^ 

In  one  point  only  does  this  analysis  seem  open  to  Is  con- 
criticism.  Is  it  the  case  that  a  contract  is  not  entered  !!."!^„„,o 
into  unless  the  wills  of  the  parties  are  really  at  one? 
Must  there  be,  as  Savigny  puts  it,  'a  union  of  several 
wills  to  a  single,  whole  and  undivided  will  ^ '  ?  Or  should 
we  not  rather  say  that  here,  more  even  than  elsewhere, 
the  law  looks,  not  at  the  will  itself,  but  at  the  will  as 
voluntarily  manifested  ^  ?  When  the  law  enforces  contracts, 
it  does  so  to  prevent  disappointment  of  well-founded 
expectations,  which,  though  they  usually  arise  from  ex- 
pressions truly  representing  intention,  yet  may  occasionally 
arise  otherwise. 

If,  for  instance,  one  of  the  parties  to  a  contract  enters 
into  it,  and  induces  the  other  party  to  enter  into  it,  re- 
solved all  the  while  not  to  perform  his  part  under  it,  the 
contract  will  surely  be  good  nevertheless.  Not  only  will 
the  dishonest  contractor  be  unable  to  set  up  his  original 
dishonest  intent  as  an  excuse  for  non-performance,  but 
should  he,  from  any  change  of  circumstances,  become 
desirous  of  enforcing  the  agreement  against  the  other 
party,  the  latter  will  never  be  heard  to  establish,  even 
were  he  in  a  position  to  do  so  by  irrefragable  proof,  that 
at  the  time  when  the  agreement  was  made  the  parties  to 
it  were  not  really  of  one  mind. 

This  view,  opposed  as  it  is  to  the  current  of  authority  The  older 
from    Javolenus*    to   the    writers    of    recent     textbooks,    ^^^' 
was  originally  put  forward  with  some  diffidence.    It  is 
now  restated  with  more  confidence,  since  English  friends 


*  System,  iii.  p.  308.  *  Ibid.  p.  309. 
'  Cf.  supra,  p.  114. 

*  'In  omnibus  rebus  quae  dominium  transferunt,  concurrat  oportet 
affectus  ex  utraque  parte  contrahentium.'  Dig.  xliv.  7.  55;  cf.  xiv.  i.  3. 


254      PRIVATE   LAW:    RIGHTS    'IN    PERSONAM. 


CHAP.    XII. 


Reasons 
for  dis- 
senting 
from  it. 


who  were  at  first  decidedly  opposed  to  it  are  converts  to 
its  truth,  while  a  similar  view,  after  having  been,  as  it 
seems,  for  some  years  academically  debated  in  Germany, 
has  definitely  come  to  the  surface  in  the  important  work 
of  Professor  Leonhard\  Indeed  when  the  question  is 
once  raised  it  is  hard  to  see  how  it  can  be  supposed  that 
the  true  consensus  of  the  parties  is  within  the  province 
of  law,  which  must  needs  regard  not  the  will  itself  but 
the  will  as  expressed  by  one  party  to  the  other  ^  taking 
care  only  that  the  expression  of  will  exhibits  all  those 
characteristics  of  a  true  act  which  have  already  been 
enumerated '. 

An  adequate  discussion  of  the  question  whether  a  con- 
tract can  be  said  to  demand  for  its  validity  a  true  union 
of  wills,  would  be  out  of  place  in  the  present  work,  which 
can  attempt  only  to  indicate  the  nature  of  the  problem 


*  Der  Irrthum  bei  nichtigen  Vertragen,  Berlin,  1882-83.  See  also 
O'Donnell  v.  Clinton,  145  Mass.  461,  where  Holmes  J.  says  that  'assent, 
in  the  sense  of  the  law,  is  a  matter  of  overt  acts,  not  of  inward  unanimity 
in  motives,  design,  or  the  interpretation  of  words';  and  two  articles  by 
Hartmann,  in  the  Archiv  fiir  civilistische  Praxis,  Bd.  72,  p.  161,  and 
Bd.  77,  p.  161,  citing  Fichte,  System  der  Sittenlehre,  p.  383.  Cf.  the 
following  remarkable  passage  from  Dr.  Adam  Ferguson's  Institutes  of 
Moral  Philosophy,  ed.  1800,  p.  155:  'An  action  of  any  kind  performed 
with  a  view  to  raise  expectation,  or  by  which  it  is  known  that  expectations 
are  naturally  raised,  is  sufficient  to  constitute  a  contract.' 

^  Sir  W.  Anson,  Contract,  ed.  x.  p.  9,  in  discussing  the  views  of  the 
present  writer  upon  this  question,  holds  that  '  the  law  does  require  the 
wills  of  the  parties  to  be  at  one,  but  that  when  men  present  all  the 
phenomena  of  agreement,  they  are  not  allowed  to  say  that  they  were  not 
agreed.'  Sir  F.  Pollock,  Contract,  ed.  vii.  p.  5,  explains  'the  intent  of 
the  parties'  as  'such  an  intent  as  a  Court  of  Justice  can  take  notice  of.' 
'  If  A,'  he  continues, '  being  a  capable  person,  so  bears  himself  towards  B 
that  a  reasonable  man  in  B's  place  would  naturally  understand  A  to 
make  a  promise,  no  further  question  can  be  made  about  what  was  passing 
in  A's  mind.'  Cf.  Professor  Langdell,  Summary,  §  180:  'Mental  acts, 
or  acts  of  the  will,  are  not  the  materials  out  of  which  promises  are  made. 
A  physical  act  on  the  part  of  the  promisor  is  indispensable.' 

^  Supra,  p.  102.  So  the  innocent  holder  of  a  bill  of  exchange  cannot 
recover  its  value  from  one  who,  without  negligence  on  his  part,  has 
endorsed  it,  on  being  assured  that  it  was  a  guarantee.  Foster  v.  Mackin- 
non,  L.  R.  4  C.  P.  711. 


AGREEMENT    IN    CONTRACT.  255 

and  the  general  character  of  the  arguments  by  which  one   chap.  xn. 

or  other  solution  of  it  may  be  supported.    The  language 

of  systems  of  positive  law  upon  the  point  is  generally 

ambiguous,  nor  is  this  to  be  wondered  at.    The  question 

is  practically  a  new  one.    The  process  of  giving  effect  to 

the  free  acts  of  the   parties  to  a  contract,  rather   than 

to  the  fact  that  certain  rigidly  defined  formalities  have 

been  complied  with,  has  lasted  so  long  that  legal  speculation 

has  only  recently  begun  to  analyse  the  free  act  itself  into 

its  two  factors  of  an  inner  will  and  an  outward  expression, 

and  to  assign  to  one  or  to  the  other  a  dominant  place  in 

the  theory  of  contract. 

Just  as  the  Romans  used,  without  analysing  them,  the  Roman 
terms    'velle,'    'consensus,'    'sentential'    so    the    modern  ^^' 
Codes,  though  some  appear  to  look  rather  to  the  inner 
will^  others  rather  to  its  outward  expression  ^  as  a  rule 
employ  language  which  is  capable  of  being  interpreted  in 
either  direction. 

The  same  may  be  said  of  the  English  cases.  In  these  English 
one  constantly  meets  with  such  phrases  as  between  him 
and  them  there  was  no  consensus  of  mind,'  'with  him 
they  never  intended  to  deal^';  but  one  also  meets  with 
much  that  supports  the  view  of  the  question  which  we 
venture  to  hope  may  ultimately  commend  itself  to  the 
Courts  as  being  at  once  the  most  logical  and  the  most 
favourable  to  the  interests  of  commerce.    The  class  of  cases 


'  See  Leonhard,  i.  p.  r  i ;  but  on  the  other  hand  Windscheid  and  Zitel- 
mann,  as  cited,  supra,  p.  115. 

^  E.  g.  the  Code  Civil,  art.  1109;  the  Codice  Civile,  arts.  1098,  11 14; 
the  Codes  of  Prussia,  §§  4,  52-56,  75-79;  of  Saxony,  §§  91,  95,  843,  844; 
and  of  Zurich,  §  926. 

'  E.  g.  the  Austrian  Code,  art.  871 ;  the  Swiss  Code  F^d^ral  des  obliga- 
tions, art.  i;  the  Civil  Code  for  Germany,  116,  as  compared  with  the 
draft  Code,  77,  95-100;  as  to  which  see  Prof.  R.  Leonhard,  in  the 
Jahrbuch  der  intemationalen  Vereinigung  fiir  vergl.  Rechtswissenschaft, 
1897,  p.  54. 

*  In  Cundy  v.  Lindsay,  L.  R.  3  App.  Ca.  459.  Cf.  per  Bowen,  L.  J.,  in 
Carlill  V.  Carbolic  Smoke-ball  Co.,  [1893]  i  Q.  B.  269. 


256       PRIVATE    LAW:    RIGHTS    'IN    PERSONAM.' 

CHAP.  XII.  in  which  this  view  may  be  traced  may  be  said  to  commence 
with  that  of  Pickard  y.  Sears,  decided  in  1838  \  and  the 
principle  which  they  involve  was  thus  stated  by  Chief 
Baron  Pollock  in  1859:  'If  any  person,  by  a  course  of 
conduct  or  by  actual  expressions,  so  conducts  himself  that 
another  may  reasonably  infer  the  existence  of  an  agree- 
ment or  licence,  whether  the  party  intends  that  he  should 
do  so  or  not,  it  has  the  effect  that  the  party  using  that 
language,  or  who  has  so  conducted  himself,  cannot  after- 
wards gainsay  the  reasonable  inference  to  be  drawn  from 
his  words  or  conduct  ^'  Still  clearer  was  the  language 
held  in  187^  in  the  case  of  Smith  v.  Hughes  ^  when 
Mr.  Justice  Blackburn  said:  'If,  whatever  a  man's  real 
intention  may  be,  he  so  conducts  himself  that  a  reasonable 
man  would  believe  he  was  assenting  to  the  terms  proposed 
by  the  other  party,  and  that  the  other  party  on  that 
belief  enters  into  the  contract  with  him,  the  man  thus 
conducting  himself  would  be  equally  bound  as  if  he  had 
intended  to  agree  to  the  other  party's  terms  ^' 

The  newer         In  other  words :    the  legal  meaning    of    such  acts  on 
theory  ,  ■.  •     ,  , 

the  part  of  one  man  as  mduce  another  to  enter  mto  a 

contract  with  him,  is  not  what  the  former  really  intended, 

nor  what  the  latter  really  supposed  the  former  to  intend, 

but    what    a    'reasonable    man,'    i.  e.    a    judge    or    jury, 

would  put  upon  such  acts^    This  luminous  principle  at 


*  6  A.  &  E.  475;  cf.  Freeman  v.  Cooke,  2  Ex.  654. 
^  Cornish  V.  Abington,  4  H.  &  N.  549. 

3  L.R.6Q.B.  607.  Cf.Carrr.  London  and  N.W.Ry.  Co.,  L.R.I  oC.  P. 
317.  In  Scott  V.  Littledale,  8  E.  &  D.  815,  the  contract  was  held  good, 
although  the  vendor  had  by  mistake  shown  a  wrong  sample.  See  also 
Leake,  Contract,  p.  12. 

*  Dr.  E.  Schuster,  in  a  very  able  article  *  Der  Vertragsschluss  nach  eng- 
lischem  Rechte,'  in  the  Archiv  fiir  Handels-  u.  Wechselrecht,  xlv.  p.  324, 
seems  to  think  that  according  to  these  cases  it  is  necessary  that  the 
expression  of  will  should  be  accompanied  with  an  intention  that  it  should 
induce  the  other  party  to  act,  and  that  the  other  party  should,  with 
a  knowledge  of  this  intention,  undertake  so  to  act. 

'  '  It  may  well  be  in  contracts  that  a  man  may  be  bound  to  a  meaning 


AGREEMENT   IN    CONTRACT.  257 

once  sweeps  away  the  ingenious  speculations  of  several   chap.  xii. 
generations  of  moralists  \  while  it  renders  needless  long 
lists  of  subtle  distinctions  which  have  been  drawn  from 
decided  cases ^ 

The  truth  and  practical  importance  of    what  may  be  is  sup- 
called  the  objective  theory  of  contract  are  confirmed  byJJi^^*'^ 

the  generally  received  rules  as  to  contracts  made  by  post :  ^  corre- 
spondence 
where  the  question,  whether  or  no  the  contract  is  made,  and 

turns,  as  we  shall  see  ^  not  on  the  coincidence  of  the  wills  ^^^^^ 

of  the  parties,  but  on  the  fact  of  their  having  exchanged 

expressions  of  intention :  and  by  the  law  of  Agency ;  since 

the  liability  of  a  principal  continues  not  merely  so  long 

as  he  continues   mentally  to  empower  his  agent  to  act 

for  him,  but  also  so  long  as  he  has  not,  to  the  knowledge 

of  third  parties,  revoked  the  agent's  authority  ^ 

Nor  is  there  any  inconsistency  between  this  view  and  and  is  con- 

the  well-established  effect  of  what  is  known  as  '  essential  ^.jt^  the 

error'  in  preventing  a  contract  from  coming  into  existence. *^°*^^""'  °^ 

mistake. 

When  such  error  is  present,  it  is  no  doubt  true  to  say 
'  non  videntur  qui  errant  consentire  ^'  All  liability  under 
the  apparent  agreement  may  be  repudiated,  and  any 
payments  made  in  pursuance  of  it  may  be  recovered  back. 
But  we  shall  find  that  even  here  the  failure  of  the  contract 
is  due  not  to  the  psychological  fact  of  mistaken  belief, 
which,  as  has  been  well  observed,  is  a  mere  'dramatic 


which  demonstrably  was  not  his.'  Leonhard,  i.  p.  119.  Of.  Lord  Sel- 
borne's  statement  that  'the  doctrine  of  reputed  ownership  does  not 
require  any  investigation  into  the  actual  state  of  knowledge  or  belief 
of  creditors,  or  of  the  outside  world,  'as  to  the  position  of  particular 
goods.  It  is  enough  for  the  doctrine  if  those  goods  are  in  such  a  situation 
as  to  convey  to  the  minds  of  those  who  know  their  situation  the 
reputation  of  ownership.'  Ex  parte  Watkins,  L.  R.  8  Ch.  Ap.  528.  Cf. 
Turner  v.  Webster,  24  Kansas,  38. 

*  E.  g.  Grotius,  De  I.  B.  et  P.  iii.  23.  4;  Paley,  Moral  Phil.  vol.  i.  c.  5; 
Austin,  ii.  p.  123. 

*  See,  e.  g.  Anson,  Contract,  ed.  x.  p.  251. 
'  Infra,  p.  261. 

*  See  Drew  v.  Nunn,  4  Q.  B.  D.  668,  and  cf.  infra,  p.  266. 

*  Dig.  1.  16.  116;  xliv.  55,  57.   Cf.  supra,  p.  113. 

HOLLAND  S 


258        PRIVATE    LAW:    RIGHTS   'IN    PERSONAM.' 

CHAP.  XII.  circumstance ','  but  to  other  causes,  which  may  be  reduced 
to  two.  (i)  The  language  employed  is  such  as  under 
the  circumstances  is  meaningless,  either  from  referring  to 
an  object  not  in  existence,  as  in  the  case  of  the  sale  of 
a  cargo  of  corn,  supposed  to  be  on  its  homeward  voyage, 
while  in  reality  it  had  become  so  heated  that  it  had  been 
unloaded  and  sold^;  or  from  ambiguity,  as  in  the  case 
of  the  sale  of  a  cargo  of  cotton  'to  arrive  ex  Peerless 
from  Bombay,'  whereas  there  were  two  ships,  either  of 
which  would  have  answered  the  description  ^  (2)  The 
true  meaning  of  the  mistaken  party  is,  or  might  be,  known 
to  the  other  party.  This  will  cover  the  cases  of  'error 
in  persona,' '  in  corpore,'  '  in  negotio,'  &c.,  as,  for  instance, 
the  case  where  a  customer  sent  an  order  for  goods  to  a 
tradesman  with  whom  he  had  been  accustomed  to  deal, 
but  who  had  disposed  of  his  business  to  a  successor, 
who,  having  supplied  the  goods  without  any  notification 
of  the  change,  was  not  allowed  to  recover  their  price  \ 
The  question  in  these  cases  should  always  be:  Avas  the 
expression  of  one  party  such  as  should  fairly  have  induced 
the  other  to  act  upon  it?  If  so,  but  not  otherwise,  it  is 
in  the  interest  of  society  that  the  loss  should  fall  upon 
the  former. 

Elements  We  shall  therefore  treat  of  the  constituent  elements  of 

of  a  con- 
tract. 

'  Holmes,  Common  Law,  p.  308. 

*  Couturier  v.  Hastie,  5  H.  L.  673.  'Domum  emi  cum  eam  et  ego  et 
venditor combustam  ignoraremus.  Nerva,  Sabinus,  Cassius,  nihil  venisse, 
quamvis  area  maneat,  pecuniamque  solutam  condici  posse  aiunt.'  Dig. 
xviii.  I.  57.  Cf.  'Nee  emptio  nee  venditio  sine  re  quae  veneat  potest 
intelligi.'    lb.  8  pr. 

'  Raffles  V.  Wichelhaus,  2  H.  &  C.  906.  The  judgment  in  this  case 
merely  supports  the  plea,  which  sets  out  the  facts  and  avers  a  difference 
of  intention  between  the  parties.  Cf.  'si  Stichum  stipulatus  de  alio 
sentiam,  tu  de  alio,  nihil  actum  erit.'    Dig.  xlv.  i.  83.  i. 

*  Boulton  V.  Jones,  2  H.  &  N.  564;  Boston  Ice  Co.  v.  Potter,  123  Mass. 
28.  In  such  cases,  as  Leonhard  says,  '  the  essentiality  of  error  depends 
entirely  on  the  question  whether  the  absence  of  error  is  made  a  cognisable 
condition  of  the  transaction.'    Irrthum,  ii.  p.  586. 


PARTIES.  259 

a  contract  as  being :  i,  several  parties ;  ii.  a  two-sided  act  chap.  xii. 
by  whicb  they  express  their  agreement;  iii.  a  matter 
agreed  upon  which  is  both  possible  and  legal;  iv.  is  of 
a  nature  to  produce  a  legally  binding  result ;  v.  and  such 
a  result  as  affects  the  relations  of  the  parties  one  to 
another;  also,  vL  very  generally,  either  a  solemn  form, 
or  some  fact  which  affords  a  motive  for  the  agreement. 

L  The  very  idea  of  a  contract  demands  for  its  formation  Parties, 
at  least  two  parties,  a  'promisor'  and  a  'promisee,'  who 
in  Roman  law  are  described  as  'debitor'  and  'creditor'; 
which  terms  have  however  a  more  general  application. 
So  it  has  been  held  that  where  one  and  the  same  company 
had  two  departments,  one  for  insurance  and  one  for 
annuities,  an  insurance  effected  by  the  latter  department 
with  the  former  was  a  nullity'.  The  promisee  must  not 
be  an  '  incerta  persona,'  e.  g.  '  the  secretary  for  the  time 
being,'  but  the  offer  may  be,  in  the  first  instance,  made  to 
an  unascertained  member  of  a  class,  e.  g.  to  the  finder  of 
a  lost  purse,  whoever  he  may  be^. 

There  may  be  more  parties  than  one  to  either  side  of  Joint  con- 
a    contract,   'plures    rei,'  'joint    contractors';    and    these 
are,  according  to  the  position  which  they  occupy,  either 
'correi  credendi,'  'joint  creditors,'  or  *correi  debendi,'  'joint 
debtors  ^.' 

ii.  The  two-sided  act,  expressive  of  agreement.      This  Offer  and 
consists  of  an  offer,  '  pollicitatio  \'  on  one  side,  and  an  ^n^^  " 

*  Grey  v.  Ellison,  i  Giflf.  438.  For  a  discussion  '  iiber  die  Theorie  des 
Selbstcontrahierens'  (i.  c.  the  case  of  an  agent  contracting  with  himself  as 
a  stranger),  see  Umberto  Pranzataro,  in  the  Transactions  of  Int.  Vereini- 
gung  fiir  vergl.  Rechtswissenschaft,  &c.,  1902,  No.  6. 

'  Such  a  proposal  is  called  in  German  'Auslobung.'  The  same 
principle  applies  to  the  offer  of  a  prize,  to  announcements  in  railway 
time-tables,  and  to  sales  by  auction. 

'  On  the  vexed  question  of  the  true  nature  of  a  correal  obligation,  see 
Sa\ngny,  Obligationenrecht,  §  23;  Movie,  Institutes  of  Justinian,  excursus 
vii;  Sohm,  Institutionen  (Transl.),  §  61;   Hunter's  Roman  Law.  p.  590. 

*  'Pollicitatio  est  solius  offerentis  promissum.'   Dig.  2.  12.  3  pr. 

S  2 


26o      PRIVATE   LAW:    RIGHTS   'IN   PERSONAM.' 


CHAP.   XII. 


Accept- 
ance. 


Uncondi- 
tional. 


Contem- 
poraneous. 


Tacit  re- 
vocation 
of  offer. 


acceptance  on  the  other*.  One  party  expresses  his  readi- 
ness to  be  bound  to  a  performance,  and  the  other  side 
expresses  his  acceptance  of  this  readiness.  An  unaccepted 
offer  creates  no  liabilities  ^  The  rules  upon  this  subject 
are  as  follows :  — 

1.  The  acceptance  must  unconditionally  correspond  to 
the  offer.  An  expression  of  readiness  to  buy  a  horse  for 
fifty  pounds  is  no  acceptance  of  an  offer  to  sell  the  horse 
for  sixty  pounds  I 

2.  The  acceptance  must  be  contemporaneous  with  the 
offer,  which  may  therefore  be  withdrawn  at  any  time 
before  it  has  been  accepted.  So  it  has  been  held  that 
a  bidder  at  an  auction  is  not  bound  till  the  hammer 
has  fallen.  'An  auction  is  not  inaptly  called  a  locus 
poenitentiae.  Every  bidding  is  nothing  more  than  an 
offer  on  one  side,  which  is  not  binding  on  the  other 
side  till  it  is  assented  to*.' 

Several  subordinate  questions  arise  with  reference  to  this 
rule,  some  of  them  giving  rise  to  very  fine  distinctions. 

(a)  How  long  does  an  offer  which  has  not  been  expressly 
revoked  remain  open?  It  is  in  accordance  with  common 
sense,  and  has  been  so  held,  that  an  offer  is  intended  to 
remain  open  only  for  a  reasonable  time^  The  German 
Commercial  Code  keeps  an  offer  made  to  a  party  at  a 


*  An  offer,  'Antrag,'  may  sometimes  be  confused  with  an  enquiry 
about  an  offer,  '  Aufforderung  zu  einem  Antrage.'  Vang.  Pand.  §  603. 
So  an  'offer  to  be  bound'  with  an  'offer  to  negotiate';  see  Bowen,  L.  J. 
in  the  Smoke-ball  case,  u.  s. 

^  'Ex  nuda  pollicitationc  nulla  actio  nascitur.'  Paul  R.  S.  v.  12.  9, 
But  some  curious  exceptions  to  this  rule  were  recognised  in  Roman  law. 
Dig.  1.12.  As  to  the  effect  of  an  unaccepted  offer  by  deed  in  English  law, 
see  infra,  p.  272. 

'  A  reply  to  this  effect  would  amount  to  a  rejection  of  the  offer  and  the 
making  of  a  counter-offer.  Hyde  v.  Wrench,  3  Beav.  334.  So  the  new 
Civil  Code  for  Germany,  150. 

*  Payne  v.  Cave,  3  T.  R.  148. 

*  Meynell  v.  Surtees,  i  Jur.  N.  S.  737;  cf.  Ramsgate  Hotel  Co.  v.  Monte- 
fiore,  L.  R.  i  Ex.  109. 


OFFER   AND  ACCEPTANCE.  261 

distance  open  only  till  an  answer  to  it  could  have  been  chap.  xn. 
received  in  due  course'. 

(/3)  Is  an  offer  revoked  by  the  death  before  it  has  been  Revoca- 
accepted  of  the  person  who  makes  it?     There  is  some  death 
difference  of  view  as  to  this  result  following  from  the 
mere  fact  of  death,  uncommunicated  to  the  acceptor^. 

(y)  Must  acceptance  be  notified  in  every  case  to  the 
offeror;  or  does  the  nature  of  the  offer  sometimes  imply 
that  actmg  on  the  proposal  will  be  enough  without 
notification  ^  ? 

(8)  When  the  parties  are  at  a  distance,  is  the  expression  Contracts 

bv  COITG" 

of  intention  by  either  party,  or  the  communication  of  such  s^ndence. 
an  expression  to  the  other  party,  to  be  regarded?  This 
difficulty,  which  continues  to  the  present  day  to  exercise  the 
ingenuity  of  the  Courts  and  divide  the  opinions  of  jurists, 
was  perceived  and  discussed  by  the  earliest  commentators 
on  the  civil  law*.  It  arises  chiefly  with  reference  to 
acceptance  of  an  offer,  but  also  with  reference  to  revocation 
either  of  an  offer  or  of  an  acceptance.  The  views  upon  the 
subject  are  classified  by  German  writers  under  three  heads. 
According  to  the  '  Aeusserungstheorie  '  C  Declarations- 
theorie '),  it  is  enough  if  an  acceptance  is  posted ;  according 
to  the  '  Empfangstheorie,'  the  acceptance  must  reach  the 
offeror;    while    according    to    the    ' Vernehmungstheorie ' 


•  Handclsgesetzbuch,  art.  319.  For  a  decision  under  this  article,  see 
Seuffert,  Archiv,  xxix.  No.  60.  So  the  German  Civil  Code,  1.17.  A  pro- 
mise by  the  offeror  to  keep  his  offer  open  for  a  reasonable,  or  any,  time, 
would  be  void  in  English  law  from  want  of  consideration. 

'  The  Indian  Contract  Act  requires  communication.  In  English  law 
the  mere  fact  seems  to  be  sufficient.  See  Dickenson  v.  Dodds,  L.  R. 
2  Ch.  D.  475.  Some  authorities  would  deny  the  existence  of  a  contract, 
but  would  indenanify  an  ignorant  acceptor.  Windscheid,  Pand.  §  307. 
Cf.  the  German  Civil  Code,  153. 

3  As  e.  g.  in  Cariill  v.  Carbolic  Smoke-ball  Co.  [1893]  i  Q.  B.  256.  Cf. 
German  Civil  Code,  151. 

*  On  1.  I  of  the  title  'De  Contr.  Empt.'  (Dig.  xviii.  i),  Accursius 
■RTites :  '  Item  quid  si  antequam  literae  vel  nun  tins  ad  eum  perveniant 
venditor  renuntiat?  Quidam  dicunt  non  valere  contractum.  Sed  Aid. 
dicit  tenere,  quod  puto  verum.' 


262        PRIVATE    LAW:    RIGHTS   'IN    PERSONAM.' 

CHAP.  XII.  ('Rescissions-,'  ' Agnitions-,'  ' Recognitionstheorie ')  it  must 
actually  come  to  his  knowledge  \  The  French  authorities 
are  similarly  at  variance,  Merlin,  for  instance,  holding  that 
the  contract  is  complete  on  acceptance,  Pothier  that  the 
acceptance  must  become  known  to  the  other  party  ^.  The 
English  Courts,  after  a  period  of  uncertainty,  seem  now  to 
have  arrived  at  conclusions  which  may  be  shortly  stated  as 
follows :  An  offer  is  irrevocable  after  it  has  been  accepted. 
Acceptance  must  be  no  merely  mental  act,  but  a  communi- 
ca,tion  to  the  proposer,  which  may  however  be  sufficiently 
made  by  posting  a  letter  containing  it  ^,  although  this  letter 
be  delayed*,  or  even  fail  altogether  to  reach  its  destination ^ 
A  revocation  of  an  offer,  despatched  before,  but  reaching 
the  acceptor  after,  the  posting  of  the  acceptance  comes 
too  late®.  A  revocation  of  an  acceptance,  posted  after, 
but  reaching  the  proposer  simultaneously  with,  the  accept- 
ance, probably  prevents  the  formation  of  the  contract  \ 

Our  judges,  it  will  be  observed,  refuse  to  give  effect  to 
an  expression  of  intention  by  one  party  unless  actually 
communicated  to  the  other,  except  that,  in  the  case  of 
an  acceptance  only,  they  hold  the  posting  of  an  acceptance 


'  Windscheid,  Pandekten,  §  306;  cf.  Vangerow,  Pand.  §  603;  Baron, 
Pand.  §  2 1 2.  For  a  full  and  interesting  discussion  on  the  several  theories  of 
dichiarazione,  s-pedizione,  and  recezione,  see  the  Rep)ort  upon  the  draft  Code 
of  C!ommerce,  presented  in  1878  to  the  Italian  Senate  by  the  Minister  of 
Justice,  Mancini,  pp.  115-143. 

*  Cf.  Dalloz,  'Obligations,'  No.  98. 

'  Brogden  v.  Metropolitan  Ry.  Co.  2  App.  Ca.  691.  The  despatch  of 
a  telegram  has  the  same  effect,  Cowan  v.  O'Connor,  20  Q.  B.  D.  640. 

*  Adams  v.  Lindsell,  i  B.  «fe  Aid.  681. 

'  Dunlop  V.  Higgins,  i  H.  L.  Ca.  381 ;  Household  Fire  and  Carriage  Co. 
V.  Grant,  L.  R.  4  Ex.  D.  216,  where  see  the  dissenting  judgment  of  Bram- 
well,  L.  J.  Cf.  Tayloe  v.  Merchants  Fire  Insurance  Co.,  9  Howard  S.  Ct. 
Rep.  390. 

*  Byrne  v.  Van  Tienhoven,  s  C.  P.  D.  344;  Henthome  v.  Eraser  [1892] 
2  Ch.  (C.  A.)  27. 

'  Dunmore  v.  Alexander,  9  Shaw  &  Dunlop,  190.  Cf.  Handekgesetz- 
buch,  art.  320. 


FLAWS    IN   CONTRACT.  263 

to  be   equivalent   to  such   communication.     They  do   not   chap.  xii. 
attribute  a  similar  effect  to  the  posting  of  a  revocation. 

Those  foreign  jurists  who,  insisting  upon  a  truly  con- 
tinuing consensus  of  the  parties,  think  that  a  proposer 
may  revoke  at  any  moment  before  the  acceptance  reaches 
him,  grant  to  the  acceptor  of  a  contract  which  may  thus 
fail  to  come  into  being  an  indemnity  for  any  loss  which 
he  may  have  sustained  by  the  proposer's  '  culpa  in  contra- 
hendo  \' 

The  topic  is  dealt  with  in  several  of  the  modern 
codes  ^ 

3.  There  are  circumstances  which,  while  they  do  not, 
like  those  already  mentioned,  by  negativing  the  presence 
of  what  is  often  described  as  a  consensus  ad  idem^  but 
would  be  more  accurately  described  as  a  concordant  ex- 
pression of  will,  render  the  apparent  contract  void  ah 
initio,  yet  operate  as  flaws  in  its  formation,  rendering 
the  resulting  obhgation  voidable  at  the  option  of  the 
party  who  is  disadvantaged  by  it^ 

Where  one  party  has   been  guilty  of  fraudulent  mis-  Fraud, 
representation  or  concealment,  he  is  not  permitted  to  hold 
the  other  party  to  his  bargain  ^    The  rhetorical  phrases 
of  a  vendor  are  not  necessarily  fraudulent,  '  simplex  com- 
mendatio  non  obUgat,'  nor  is  the  contract  voidable  unless 


*  Pothier,  Contr.  de  Vente,  §  32;  Windscheid,  Pandekten,  §  307. 

'  Indian  Contract  Act,  §  4;  Handelsgesetzbuch,  art.  318-321 ;  the  new 
Italian  Codice  di  Commercio,  art.  35;  the  New  Swiss  Code  F^^ral  des 
Obligations,  arts.  5-8;  the  new  German  Civil  Code,  147-153;  the  new 
Japanese  Civil  Code,  arts.  526,  527.  For  recent  American  cases,  see 
C.  Noble  Gregory,  in  American  Law  Register,  1900. 

^  On  the  distinction  between  void  and  voidable  acts,  cf.  supra,  p.  118. 
The  French  and  Italian  Codes  seem  to  give  to  'essential  error'  no 
higher  effect  upon  a  contract  than  they  attribute  to  fraud  and  duress. 
Plato  mentions  duress,  fraud  and  haste,  as  grounds  for  avoiding  a  con- 
tract.    Crito,  52  E. 

*  Cf.  German  Civil  Code,  119.  An  'exceptio  doli  mail'  was  first  per- 
mitted to  actions  upon  formal  contracts  in  the  time  of  Cicero.  On  fraud 
as  an  infringement  of  a  right  'in  rem,'  v.  supra,  p.  ^29. 


264       PRIVATE    LAW:    RIGHTS    'IN    PERSONAM.' 

CHAP.  XII.  it  has  been  materially  induced  by  the  misrepresentation. 
The  fraud  of  an  agent  will  be  imputed  to  his  principal, 
although  the  latter  may  have  acted  with  bona  fides.  In 
recent  English  cases  it  has  been  held  that  innocent 
misrepresentations  are  ground  for  setting  aside  a  contract 
which  they  have  induced,  or  for  refusal  of  specific 
performance  of  it^  What  is  known  in  English  law  as 
'  undue  influence '  is  also  held  to  make  a  contract  voidable. 
This  consists  in  acts  which,  though  not  fraudulent,  amount 
to  an  abuse  of  the  power  which  circumstances  have  given 
to  the  will  of  one  individual  over  that  of  another.  In 
some  relations,  such  as  that  of  solicitor  and  client,  or 
parent  and  child,  the  existence  of  this  exceptional  power 
is  often  presumed,  but  its  existence  is  capable  of  being 
proved  in  other  cases  also^. 
Duress.  Duress,  which  is  another  ground  on  which  a  contract 

is  voidable,  consists  either  in  violence  to  the  person,  or 
in  threatened  violence  of  the  same  character,  'duress  per 
minas.'  It  will  not  be  enough  if  the  safety  of  a  man's 
house  or  goods  only  be  threatened  ^  and  the  fear  caused 
must  be,  as  has  been  said,  'not  a  vain  fear,  but  such  as 
may  befall  a  constant  man ' ;  '  vani  timoris  iusta  excusatio 
non  estV 

According  to  EngUsh  law  the  fraud  or  duress  of  a  third 
party  has  no  effect  upon  a  contract;  and  this  is  the 
generally  accepted  rule  as  to  fraud  \  though  not  as  to 
duress  ®. 


'  Redgrave  v.  Hurd,  20  Ch.  D.  i;   Newbigging  v.  Adam,  34  Ch.  D. 
582. 

*  On  the  doctrine  of '  laesio  enormis,'  as  applied  in  the  contract  of  sale, 
V.  infra,  p.  281. 

*  Aliter  Code  Civil,  art.  11 11;  Codice  Civile,  art.  1112. 

*  Dig.  1.  17.  184.     Cf.  supra,  p.  103. 

'  Though  it  is  criticised  by  some  commentators  on  the  French  Code: 
see  Dalloz,  Repertoire,  s.  v.  'Obligation.' 

*  Dig.  iv.  2.  9.  I,  ib.  14.  3;    Code  Civil,  art.  11 11;    Codice  Civile, 
art.  iiii. 


AGENCY    IN    CONTRACT.  265 

4.   The  expression  of  agreement  may  be  in  writing,  or   chap.  xn. 

by  words,  or  by  signs,  or  merely  by  a  course  of  conduct,  ^^^^  ^^ 

'  expres- 

in  which  last  case  it  is  called  an  'imphed  contract  \'  Insion. 
an  old  case,  it  was  said,  with  reference  to  an  unexpressed 
acceptance, '  your  having  it  in  your  own  mind  is  nothing, 
for  it  is  trite  law  that  the  thought  of  man  is  not  triable, 
for  even  the  devil  himself  does  not  know  what  the  thought 
of  man  isV 

It  must  be  expressed  by  the  parties  to  one  another: 
but  in  developed  systems  of  law  it  is  not  necessary  that 
the  parties  shall  be  face  to  face  at  the  time.  They  may 
communicate,  for  the  purpose  of  contracting,  as  well  as 
for  the  purpose  of  otherwise  affecting  their  legal  relations, 
by  letter,  or  by  telegraph,  or  by  means  of  a  messenger  May  be  by 
or  other  go-between.  This  go-between,  when  entrusted  ^^°  ' 
with  a  certain  amount  of  discretion,  is  called  an  agent, 
or  mandatory,  and  he  acts  by  virtue  of  the  authority,  or 
'mandate,'  confided  to  him  by  his  principal^.  The  giving 
of  this  authority  on  the  one  hand,  and  its  acceptance  on 
the  other,  constitute  a  special  contract,  resulting  in  mutual 
rights  and  duties  between  the  principal  and  the  agent, 
which  will  have  to  be  discussed  hereafter.  We  are  now 
only  concerned  with  agents  as  being,  for  the  purposes  of 
all  contracts  alike*,  capable  of  giving  binding  expression 

*  It  is  necessary  carefully  to  distinguish  from  this  appropriate  use  of 
the  phrase,  its  use  as  descriptive  of  terms  imported  into  a  contract  by  the 
law  (supra,  p.  243,  infra,  p.  282),  or  of  a  transaction  to  which  the  law 
chooses  to  attach  the  consequences  of  a  contract,  although  it  is  nothing 
of  the  kind  (supra,  p.  237). 

*  Per  Brian,  C.  J.,  1 7  Ed.  IV,  quoted  by  Lord  Blackburn  in  Brogden  v. 
Metropolitan  Railway  Co.,  L.  R.  2  App.  692. 

'  Supra,  pp.  Ill,  117.  The  distinction  between  Agency  and  Service  is 
said  to  be  that  the  former  relates  to  transactions  of  business  with  third 
persons,  the  latter  to  action  upon  or  about  things:  Mechem,  Agency,  §  2; 
and  it  has  accordingly  been  held  that  a  Telegraph  Company  is  not 
responsible  for  the  knowledge  of  its  telegraphist.  Western  Union  Tel. 
Co.  V.  Wofford,  74  S.  W.  Rep.  943,  cited  in  Michigan  Law  Review,  ii.  p.  139. 

*  The  ratification  of  the  promise  of  an  infant  could  not  however,  under 
Lord  Tenterden's  Act,  be  made  by  an  agent. 


266      PRIVATE   LAW  :    RIGHTS    '  IN    PERSONAM.' 

CHAP.  XII.  to  the  will  of  their  principals.  Each  party  to  a  contract 
may  be  represented  by  an  agent.  It  is  a  universally 
received  maxim,  that  a  person  who  at  the  time  had  no 
authority  to  act  for  another,  may  be  retrospectively  made 
his  agent  by  subsequent  ratification.  'Omnis  ratihabitio 
retrotrahitur  et  mandato  priori  aequiparatur  ^' 
Authority  An   agent    may  in  general  be  appointed  without    any 

o  agen  .  formality,  though  in  Enghsh  law  an  agent  to  execute  a 
deed  must  be  appointed  by  deed,  and  for  the  purpose  of 
binding  his  principal  under  the  Statute  of  Frauds,  sections 
I  and  2,  must  be  appointed  in  writing.  Agency  may  also 
be  imphed  from  the  acts  of  the  principal,  on  the  ground 
that  if  one  person  by  his  acts  represents  another  person 
to  be  his  agent,  he  ought  to  be  liable  upon  the  contracts 
into  which  third  parties  may  enter  on  the  faith  of  such 
a  representation.  A  servant,  for  instance,  who  is  in  the 
habit  of  ordering  goods  for  his  master  on  credit,  may 
continue  to  bind  his  master  after  his  authority  has  been 
withdrawn,  ^vith  reference  to  third  parties  who  have  had 
no  notice  of  such  withdrawal.  So  the  master  of  a  ship  is, 
in  emergency,  an  agent  to  pledge  the  credit  of  his  employer 
for  the  good  of  the  ship.  It*  has  however  been  held  that 
mere  necessity  does  not,  in  general,  create  agency ;  so 
a  railway  company  is  not  liable  for  the  fees  of  a  surgeon 
who  has  been  called  in  by  one  of  their  station-masters 
to  attend  to  the  sufferers  from  an  accident  ^  A  wife, 
merely  as  such,  has  no  authority  to  bind  her  husband's 
credit ;  and  it  has  been  held  accordingly  that  a  prohibition 
to  her  to  order  goods,  though  uncommunicated  to  her 
tradesmen,  is  sufficient  to  relieve  the  husband  from  liability 
for  her   purchases  ^  not  made  from   persons  induced  by 


'  Cf.  Bird  V.  Brown,  4  Ex.  798;  Fleckner  v.  U.  S.  Bank,  8  Wheaton. 
363;  and  it  seems  that  an  unauthorised  acceptance  may  be  ratified  even 
after  the  withdrawal  of  the  offer.    Bolton  v.  Lambert,  41  Ch.  D.  295. 

^  Cox  V.  Midland  Railway  Co.,  3  Ex.  268. 

'  Jolly  V.  Rees,  19  C.  B.,  N.  S.  628.  The  principle  of  this  case  has  been 


POSSIBILITY   AND   LEGALITY.  267 

his  previous  conduct  to  suppose  that  she  is  acting  by  his   chap.  xn. 
authority. 

The  authority  of  an  agent  is  terminated,  in  English  law, 
by  the  death,  or  bankruptcy,  and  perhaps  by  the  lunacy, 
of  his  principal.  Before  1883  also  by  the  marriage  of 
a  principal  who  was  a  woman. 

Agents  are  said  to  be  'general'  when  their  authority  Agents, 
is  defined  by  their  character  or  business,  as  in  the  case^^*^*^ 
of  factors,  brokers,  or  partners ;  or  '  special '  when  their  g^^^ral. 
authority  is  limited  by  the  terms  of  their  appointment. 
No  private  instructions,  contrary  to  the  usages  of  a  general 
agent's  business,  will  limit  the  liability  of  his  principal. 
It  follows  from  the  nature  of  agency,  that  a  contract  made 
by  an  agent  is  regarded  as  the  contract  of  his  principal, 
who  alone  therefore  can  as  a  rule  sue  or  be  sued  upon 
it.  The  agent,  having  done  his  part  by  acting  as  the 
intermediary,  drops  out  of  the  transaction  \  The  fraud  of 
an  agent  will  render  voidable  the  contract  of  his  principal. 
In  marine  insurance  the  insured  may  be  responsible  for 
non- disclosure  of  facts  unknown  to  himself,  if,  but  for  the 
fraud  or  negligence  of  the  agent  through  whom  he  has 
effected  the  insurance,  they  ought  to  have  been  known 
to  him^.  If  a  man  contracts  avowedly  as  the  agent  of 
another,  though  without  authority,  neither  can  be  charged 
upon  the  contract,  but  the  pretended  agent  is  liable  for 
the  deceit '. 

iii.  The  matter  agreed  upon  must  be  at  the  time  of  the  Possibil- 
ity and 
legality. 

affirmed  by  the  House  of  Lords  in  Debenham  v.  Mellon,  L.  R.  6  App. 
Ca.  24 .  But  a  husband  is  liable  {quasi  ex  contractu)  for  necessaries  supplied 
to  a  wife  whom  he  has  wrongfully  deserted,  as  being  his  'agent  of 
necessity.'     Ea.stland  v.  Burchell,  3  Q.  B.  D   436.     Cf.  supra,  p.  244  n. 

'  For  a  list  of  the  exceptions,  real  or  apparent,  to  this  rule  recognised 
in  English  law,  and  a  discussion  of  the  difference  between  'disclosed'  and 
'undisclosed'  principals,  see  Dicey 's  Parties  to  an  Action,  pp.  134-143. 

'  Blackburn  i\  Vigors,  12  App.  Ca.  531. 

'  Cf.  supra,  p.  231. 


268      PRIVATE   LAW:     RIGHTS  'IN    PERSONAM.' 

CHAP.  XII.   agreement  both  possible  and  legally  permissible  \  A  thing 

is  said  to  be  impossible,  not  only  'quod  natura  fieri  non 

concedit,'  but  also  if  it  be  practically  out  of  the  question, 

because  it  can  only  be  accomplished  at  an  unreasonable 

cost,  e.  g.  the  recovery  of  a  ring  which  is  known  to  be 

lying  at  the  bottom  of  the  sea;  or  if  it  imports  to  have 

a  legal  effect  unknown  to  the  law.    A  contract  to  do  an 

act  illegal  because  prohibited  by  law  is  equally  void.     So 

a  sale  of  pork  or  wine  is  void  according  to  Mohammedan 

law  ^ ;  and  the  law  of  England  will  not  enforce  a  contract 

of  'marriage  brokage^'  or  for    assigning    the    salary  of 

Public  a  public    officer.   Such  contracts    are   sometimes    said  to 

Dolicv 

be  'against  public  policy.'    But  this   doctrine  has    been 

called  '  a  very  unruly  horse ' ;  and  in  a  recent  case  Sir 

G.  Jessel  observed:    'You  are  not  to  extend  arbitrarily 

those  rules  which  say  that  a  given  contract  is   void  as 

being  against  public  policy ;  because,  if  there  is  one  thing 

which  more  than    another    public   policy  requires,  it    is 

that  men  shall  have  the  utmost  liberty  of  contracting, 

and  that  their  contracts,  when  entered  into  freely  and 

voluntarily,  shall  be  held  sacred,  and  shall  be  enforced 

by  courts  of  justice.    Therefore  you  have  this  paramount 

public  policy  to   consider,  that    you    are  not  lightly  to 

interfere  with  freedom  of  contract  *. '    It  must  however  be 

observed  that  a  wide  application  is  given  to  the  requirement 

of  French  law  that  a  contract  shall  have  a  '  cause  licite  * ' 

(the  'cause 'is  'illicite,  quand  elle  est  prohibee  par  la  loi, 

quand  elle  est  contraire  aux  bonnes  moeurs,  ou  a  I'ordre 

public "');    and  to  the  article  of  the  German  Civil  Code 


'  Inst.  iii.  19.  i;  Dig.  xliv.  7.  3i,xlv.  i.  35;  German  Civil  Code,  306-Q. 
So  Agesilaus  maintained,  with  reference  to  an  unjust  promise,  fAffa  niv, 
&fjLo\6yriffa  8'  oS.     Plut.  Apoph.  Lac.  p.  208  c. 

^  Hidiyah,  ii.  p.  429. 

'  Cf.  Cod.  V.  I.  6;  Dig.  xlv.  i.  134. 

*  Printing  Company  r.  Sampson,  L.  R.  19  Eq.  465.  Cf.  Janson  i'.  Drie- 
fontein  Cons.  Mines  Co.  [1902]  A.  C.  484. 

'  Code  Civil,  1108.     Cf.  Codice  Civile,  1122.  •  lb.  1133. 


FORM.  269 

declaring  'null'  all  juristic  acts  which  offend  against  good  chap.  xii. 
morals  *. 

iv.  The  agreement  must  purport  to  produce  a  legaUy  Producing 
binding  result.  Thus  the    acceptance   of  an  invitation  tOg^^^Vg 
dinner,  or  an  engagement  to  take  a  walking  tour   with 
a  friend  in  Switzerland,  are  no  contracts'. 

V.  It  must  l)e  of  a  nature  to  produce  a  binding  result  on  the  re- 
upon  the  mutual  relations  of  the  parties ;  therein  differing  of  the 
from  the  agreement  of  a  bench  of  judges,  or  of  a  board  P^^'^- 
of  directors,  which  has  no  reference  to  the  relations  of 
the  judges,  or  of  the  directors,  one  to  another. 

vi.  Xo  system  of  law  will  enforce  as  a  contract  any  trans-  Form  or 
action  which  does  not  exhibit  all  of  the  five  characteristics  *^"^' 
already  described.  Even  when  these  are  all  present,  the 
transaction  will  generally  be  treated  as  a  '  nudum  pactum,' 
unless  it  is  either  effected  in  compliance  with  certain 
prescribed  formalities,  or  is  the  result  of  some  underlying 
fact,  which  the  Roman  jurists  called  'causa.'  First  as  to 
superadded  formalities '. 

I.  It  is  a  topic  of  controversy  whether  'formal'  or  Form. 
'  informal '  contracts  are  .  historically  the  earlier,  Roman 
legal  speculation  seems  to  have  derived  the  informal 
contracts,  which  were  attributed  to  the  'ius  gentium,' 
from  a  primitive  state  of  nature,  formal  contracts  being 
regarded  as  later  in  date,  because  resulting  from  the 
idiosyncrasy  of  the  Roman  people. 

Recent  investigators,  after  examination  of  a  far  wider 


*  Bilrgerliches  Gesetzbuch,  138.  See  also  the  Enghsh  Cases  collected  in 
Mr.  Jenks'  Digest  of  English  Civil  Law  (1905),  arts.  95,  96. 

*  '  Verborum  quoque  obligatio  constat  si  inter  contrahentes  id  agatur: 
nee  enim  si  per  iocum  puta,  vel  demonstrandi  intellectus  causa  ego  tibi 
dixero  "Spondes?"  et  tu  responderis  "Spondeo,"  nascetur  obligatio.' 
Dig.  xliv.  7.  3.  Cf.  Carlill  v.  Carbolic  Smoke-ball  Co.  [1893]  i  Q.  B.  256; 
German  Civil  Code,  118. 

'  Cf.  supra,  p.  117. 


270        PRIVATE    LAW:    RIGHTS   'IN    PERSONAM.' 

CHAP.  XII.  range  of  facts  than  was  formerly  accessible,  are  led  to 
the  conclusion  that  complexity,  rather  than  simplicity, 
is  the  characteristic  of  primitive  customs,  and  that  the 
consensual  kernel  of  contract  has  only  gradually  dispensed 
with  the  husk  of  ceremonial  with  which  during  long  ages 
it  was  almost  identified.  The  evidence  in  support  of 
this  view  is  very  strong,  though  it  may  be  questioned 
whether  its  adherents  have  sufficiently  noticed  the  fact 
that  such  bailments  of  everyday  use  as  pledging  and 
letting  seem  to  have  been  made  in  very  early  times  with 
no  more  formality  than  the  mere  transfer  of  the  possession 
of  an  object,  the  ownership  of  which  was  probably 
notorious. 

Advan-  A  solemn  form,  be  it  observed,  has  two  distinct  advan- 

'  tages.  In  the  first  place,  it  prevents  the  bargain  from  being 
rashly  struck;  and  in  the  second  place,  it  facilitates  the 
proof  of  what  has  occurred.  The  formal  contract  of  the 
best  ages  of  Roman  law  was  the  '  stipulatio,'  or  solemn 
question  and  answer,  imitations  of  which  may  be  found 
in  the  Marriage  and  Baptismal  Services  of  the  English 
Church.  This,  according  to  many  wi'iters,  whose  views 
were  popularised  by  Sir  Henry  Maine  \  must  have  been 
a  relic  of  a  still  more  formal  ceremony  in  which  the 
solemn  words  were  accompanied  by  the  symbolic  weighing 
of  pieces  of  copper  in  the  presence  of  a  balance-holder 
and  five  witnesses ;  but  Mr.  W.  A.  Hunter  has  well  explained 
the  reasons  for  thinking  that  the  '  stipulatio '  was  indepen- 
dent of,  and  as  old  as,  the  '  mancipatio  '  itself  ^  It  became 
usual  to  draw  up  a  Avritten  memorandum,  'cautio,'  of 
the  stipulation,  and  this  was  held  to  be  presumptive 
evidence  that  the  contract  had  been  entered  into.  The 
restriction  which  originally  prevented  a  stipulation  from 


'  Ancient  Law,  p.  320. 

'  Roman  Law,  p.  536.  Cf.  Sohm,  Institutes  (Transl.),  §  12.  For  a 
summary  of  the  various  views  upon  the  subject,  see  Aluirhead,  Historical 
Introduction,  ed.  Goudy,  p.  214. 


CONTRACTS    UNDER   SEAL.  271 

being  entered  into  by  means  of  an  agent  was  done  away   cuap.  xii, 
with  in  the  later  legislation. 

Among  the  Teutonic  conquerors  of  the  Roman  empire.  Varieties 
it  seems  that  such  contracts  only  were  recognised  as  were  °  ' 
either  accompanied  by  a  bailment, '  re  praestita,'  or  entered 
into  by  means  of  a  formality,  '  fides  facta,' '  Wette,' '  Treu- 
gelobniss,'  consisting  in  the  delivery  of  a  wand,  '  festuca,' 
or  similar  object  \  This  was  represented  in  later  times 
by  a  shake  of  the  hand,  ' Handschlag,'  'Handsel.'  Part 
payment  was  represented  by  the  '  Denier  a  Dieu,' '  Paumee,' 
or  'Weinkauf  V 

Besides  these  methods  the  old  French  customary  law 
recognised  also  obligation  by  a  writing  under  seal'.  So 
also  the  most  solemn  form  known  to  the  law  of  England 
is  a  deed,  or  document  sealed  and  delivered.  An  agreement 
if  thus  entered  into  is  called  a  'specialty  contract,'  while 
if  made  in  any  other  way,  even  in  writing,  it  is  a  '  simple ' 
or  '  parol  contract.'  As  Roman  law  enforced  a  '  stipulatio  ^' 
so  English  law  enforces  a  'specialty  contract,'  without 
looking  beliind  it  to  inquire  into  its  equitableness,  or 
into  the  motives  which  caused  it  to  be  made;  although 
both  stipulations  and  deeds  may  be  impeached  on  the 
ground  of   fraud,  mistake,   or  duress  ^    The  parties  are 


*  See  the  references  to  Sohm's '  Eheschliessung '  and '  Lex  Salica,'  con- 
tained in  two  articles  by  M.  Esmein,  'sur  les  contrats  dans  le  tr^-ancien 
droit  fran^ais,' Nouv.Rev.Hist.de  Droit, &c.,t.iv.  p.  65 6,t. v. p.  21,  whence 
are  derived  several  of  the  statements  in  the  text.  See  also  Essays  in 
Anglo-Saxon  Law,  p.  189;  and  now  Pollock  and  Maitland,  History  of 
English  Law,  ii.  p.  183.  Of.  Holmes  J.  in  Harvard  Law  Review,  xii.  p.  445. 

^  '  Statuimus  quod  omnis  emptio  et  venditio  rata  sit  et  firma  perpetuo, 
si  facta  fuerit  cum  denario  Dei  iuridico  et  recepto.'  Stat,  municip.  de  la 
ville  de  Salon  (1293).  'Emptio  vel  venditio  non  valet  sine  palmata,  vel 
sine  solutione  pretii  peculiari  vel  universali,  vel  sine  rei  traditione.* 
Gout,  de  Montpellier,  cited  by  M.  Esmein. 

^  Beaumanoir,  xxxv.  r. 

*  The  novel  doctrine,  that  a  stipulation  needs  a  *  causa/  is  combated  by 
Savigny,  Obligationenrecht,  ii.  pp.  249-266. 

*  '  For  a  time,  a  man  was  bound  by  his  seal  although  it  was  afRxed 


272       PRIVATE    LAW:    RIGHTS   'IN    PERSONAM.* 


Writing. 


Bilk  of 
exchange 


CHAP.  XII.  also,  as  it  is  said,  '  estopped '  from  denying  the  truth 
of  the  statements  to  which  they  have  set  their  seals,  and 
there  is  some  authority  for  saying  that  an  offer  by  deed 
is  irrevocable,  although  it  has  not  been  accepted  by  the 
other  party  \  Certain  agreements  cannot  be  made  other- 
wise than  by  deed  I 

A  less  solemn  formality  consists  in  the  reduction  of 
a  bargain  to  writing  ^ 

The  '  chirographa '  and  syngraphae '  of  Roman  law,  and 
the  bills  of  exchange  and  promissory  notes  of  modern 
Europe,  must  be  made  in  this  way,  or  they  could  not  be 
made  at  all ;  but  many  agreements  which  might  very  well 
be  entered  into  by  word  of  mouth  have  been  rendered 
by  positive  enactment  void  unless  embodied  in  a  written 
document.  This  has  of  course  been  done  with  a  view 
to  guard  against  deception  and  disputes. 

Increased  freedom  of  contracting  leads  naturally  to 
increasing  difficulty  in  deciding  whether  a  contract  has 
been  made  or  not.  Hence  in  France  the  Ordonnance 
de  Moulins,  1566,  'pour  obvier  a  la  multiplication  des  faits 


L'Ordon- 
nance  de 
Moulins. 


against  his  will.'  Holmes,  Common  Law,  p.  272,  citing  Glanville,  Britton, 
and  other  early  authorities.  In  many  States  of  the  United  States  it  is 
held  that  a  mere  flourish  of  the  pen  is  a  sufficient  seal,  and  in  some  of 
them  the  distinction  between  sealed  and  unsealed  instruments  has  been 
expressly  abolished.   lb.  p.  273. 

'  Xenos  V.  Wickham,  L.  R.  2  H.  L.  296,  in  which  some  earlier  cases  are 
cited.  It  may  however  be  hoped  that  this  case  will  some  day  be  ex- 
plained away.  The  doctrine  to  which  it  gives  countenance  has,  not  un- 
naturally, been  stigmatised  as '  ein  juristisches  Monstrum,'  Schlossmann, 
Der  Vertrag,  p.  150,  cited  by  E.  Schuster,  Archiv  fur  Handelsrecht,  xiv. 
p.  21. 

^  It  has  been  given  as  the  reason  of  the  sufficient  character  of  a  deed 
that  it '  imports  consideration.'  The  statement  is  artificial  on  the  face  of 
it,  and  becomes  doubly  so  when  we  remember  that  deeds  were  binding 
before  the  doctrine  of  consideration  had  been  worked  out.  See  Sir 
W.  R.  Anson,  Contract,  ed.  x.  p.  67. 

'  The  Schtar,  a  public  act,  signed  bj'  the  parties  and  at  least  two  wit- 
nesses, according  to  Jewish  law  takes  precedence  of  antecedent  informal 
contracts,  and  binds  the  debtor's  property  in  the  hands  of  a  purchaser. 
L.  Auerbach,  Das  judische  Obligationenrecht,  Bd.  i.  1871. 


INFORMAL   CONTRACTS.  273 

que  Ton  a  vu  ci-devant  etre  mis  en  avant  en  jugement,  chap.  xii. 
sujets  a  preuve  de  temoins  et  reproches  d'iceux,  dont 
adviennent  plusieurs  inconvenients  et  involutions  de 
proces,'  prohibits  proof  by  witnesses  when  the  matter 
in  dispute  exceeds  100  francs  \  Hence  also  the  English  The 
'  Statute  of  Frauds,'  passed  '  for  the  prevention  of  many  Frauds, 
fraudulent  practices,  which  are  commonly  endeavoured 
to  be  upheld  by  perjury  and  subornation  of  perjury,' 
provided  that  no  contract  for  the  sale  of  goods  for 
the  price  of  ten  pounds  or  upwards,  should  'be  allowed 
to  be  good'  unless  there  should  be  part  delivery  of 
the  goods,  or  part  payment  of  the  price,  or  some  note 
or  memorandum  in  writing  of  the  bargain  made  and 
signed  by  the  parties,  or  their  agents^.  By  the  same 
Statute, '  no  action  shall  be  brought '  on  a  contract  which 
makes  an  executor  personally  liable,  or  guarantees  the 
debt  or  default  of  another,  or  creates  a  liability  in  con- 
sideration of  marriage,  or  relates  to  an  interest  in  land, 
or  is  not  to  be  performed  within  a  year,  unless  it,  'or 
some  memorandum  or  note  thereof,  shall  be  in  writing, 
and  signed  by  the  party  to  be  charged  therewith,'  or 
by  his  agents  An  acknowledgment  of  a  debt  debarred 
by  the  statutes  of  limitation  must  also  be  written  and 
signed  \ 


*  Cf.  Code  Civil,  arts.  131 7,  1322,  1341;  Burgerliches  Gesetzbuch, 
126-128. 

^  29  Car.  II.  c.  3.  s.  17.  This  section  has  been  repealed  by  the  Sale  of 
Goods  Act,  1893,  but  is  reproduced,  with  slight  variations,  in  s.  4  of  that 
Act,  as  follows:  '  A  contract  for  the  sale  of  any  goods  of  the  value  of  ten 
pounds  or  upwards  shall  not  be  enforceable  by  action  unless  the  buyer  shall 
accept  part  of  the  goods  so  sold,  and  actually  receive  the  same,  or  give 
something  in  earnest  to  bind  the  contract,  or  in  part  payment,  or  unless 
some  note  or  memorandum  in  ^vTiting  of  the  contract  be  made  and  signed 
by  the  party  to  be  charged  or  his  agent  in  that  behalf.'  On  the  effect  of 
this  section,  see  L.  Q.  R.  xiii.  p.  298. 

'  29  Car.  II.  c.  3.  s.  4. 

*  9  Geo.  IV.  c.  14.  8.  i;  19  &  20  Vict.  c.  97.  s.  13.  Cf.  Code  Civil,  art. 
134;  AUg.  Landrecht,  i.  tit.  v.  §  131. 

HOLLAND  T 


274        PRIVATE    LAW:    RIGHTS    *  IN    PERSONAM.' 

CHAP.  xii.  2.  Besides  such  agreements  as  were  fortified  by  special 
Cause.  formalities,  the  earlier  Roman  law  recognised,  as  legally 
enforceable,  only  eight  informal  contracts,  four  of  which, 
loan  for  consumption,  loan  for  use,  deposit  and  pledge, 
were  accompanied  by  a  bailment ;  while  the  other  four  — 
sale,  letting,  agency,  and  partnership  —  related  to  indis- 
pensable transactions  of  every-day  occurrence.  Certain 
other  agreements,  though  never  dignified  by  the  name  of 
contracts,  were  in  later  times  enforced  as  '  pacta  vestita  \' 
All  of  these  were  accompanied  by  a  '  causa,'  which,  though 
often  consisting  in  part  performance,  was  in  effect  only 
the  mark  by  which  an  arbitrarily  defined  class  of  agree- 
ments were  distinguishable ;  and  agreements  where  there 
was  no  'causa'  continued  to  be  treated  as  'nuda  pacta,' 
on  which,  though  they  might  be  ground  for  a  plea,  no 
action  could  be  founded  I 

Partly  under  the  mfluence  of  the  Canon  Law  \  partly 
from  the  strong  sense  of  the  obUgation  of  a  promise  charac- 
teristic of  the  Teutonic  races  *,  the  nations  of  the  continent 
early  ignored  the  narrow  definition  of  'causa'  and  the 
distinction  between  '  contractus '  and  '  nuda  pacta '  which 
they  found  in  the  writings  of  the  Roman  lawyers.  In 
France,  Beaumanoir  could  assert,  towards  the  close  of  the 
thirteenth  century:  'Toutes  convenances  sont  a  tenir,  et 
por  ce  dit  on  "convenence  loi  vaincV  exceptees  les  con- 

'  This  term  seems  to  have  been  invented  by  Azo,  who  says :  '  si  qiiidem 
pactum  fuerit  nudum,  propter  nimiam  frigiditatem  pare  re  obligationem 
non  potest,  nisi  mirabihter  hoc  in  quibusdam  casibus  accidat,  ut  in 
donatione,  ...  si  autem  non  fuerit  nudum,  sed  vestitum,  actionem  parit, 
sic  enim  ei  nomen  recte  impono.'     Summa  Cod.,  de  pactis,  fol.  67. 

'  'Sed  cum  nulla  subest  causa,  propter  fpraeter?]  conventionem,  iiic 
constat  non  posse  constitui  obligationem :  igitur  nuda  pactio  obligationem 
non  parit,  sed  parit  exceptionem.'   Dig.  ii.  14.  7.  4. 

'  See  cc.  I,  3  X.  de  pactis. 

*  Heineccius,  Elem.  luris.  Germanici,  Lib.  ii.  tit.  12,  §  330. 

*  Beaumanoir,  says  M.  Esmein,  knowingly  puts  a  new  meaning  on  tliis 
phrase,  which  in  the  Assize  of  Jerusalem  merely  approves  of  assignment 
inter  mvos  of  property  to  which  the  assignor's  heirs  would  be  entitled  on 
his  death.    Nouv.  Rev.  Hist,  de  Dr.  Fr.  et  6tr.  t.  iv.  p.  683. 


CAUSA.  275 

venances  qui  sont  fetes  por  malveses  causes '  * ;  and  it  was  chap,  xii 
an  old  saying :  '  on  lie  les  boeuf s  par  les  comes  et  les  hommes 
par  les  paroles  '  ^.  It  has,  accordingly,  long  been  settled  in 
French  law  that  every  permissible  agreement  is  legally 
binding,  subject  only  to  the  proviso  that  every  agreement 
must  have  a  '  cause,'  the  precise  meaning  of  which  seems  to 
be  far  from  clear  to  the  French  commentators  themselves '. 
The  Dutch  writers  take  a  similar  view ;  Paul  Voet  roundly 
asserting  that  'ex  nudo  pacto  oritur  actio V  'Causa' 
(oorzaak)  signifies,  according  to  these  writers,  nothing  more 
than  a  reasonable  and  permissible  ground  for  the  consent 
of  the  parties.  A  curious  divergence  of  opinion  upon  the 
point  has,  however,  manifested  itself  between  courts  admin- 
istering the  Roman-Dutch  law  in  British  possessions.  The 
courts  of  the  Transvaal ^  Ceylon",  and  British  Guiana' 
adhere  to  the  view,  held  also  at  the  Cape  previously 
to  1874*,  that  any  agreement  founded  on  a  'redelijke 
oorzaak,'  which  is  also  a  '  causa  legitima,'  is  legally  binding, 
while  the  Supreme  Court  of  the  Cape  Colony  has  laid  down, 
in  a  long  series  of  modern  cases,  that,  except  for  a  '  donatio,' 
the  '  causa '  must  be  equivalent  to  the  '  valuable  considera- 
tion' of  English  law®. 


'  Coutume  de  Beauvoisis,  xxxiv.  2. 

'  Loisel,  Inst.  Cout.  liv.  iii.  tit.  i  r^gle  2.  He  continues:  'autant  vaut 
une  simple  promesse  ou  convenance  que  les  stipulations  du  droit  romain.' 

'  Code  Civil,  arts.  1108,  1131;  Pothier,  Oblig.  art.  42.  But  see  Dalloz, 
s.  V.  'Obligation,'  No.  498,  where  we  are  warned  against  taking  'cause' 
to  be  equivalent  to  'motif,'  to  'pourquoi,'  or  to  'objet.' 

*  Ad.  Inst.  iii.  14.  15. 

*  Roodt  V.  Wallach  (1904),  21  Trans.  L.  R.  137. 

'  Lipton  V.  Buchanan  (1904),  8  New  L.  R.  (Ceylon),  49. 

'  De  Cairos  bros.  v.  Caspar,  in  S.  Africa  L.  J.,  xxi.  1905,  p.  347. 

*  Louisa  van  den  Berg  (1830),  i  Menz.  472;  Jacobson  v.  Norton,  2  ib. 
221. 

*  Ale.xander  v.  Perry,  Buchan.  1874,  59;  Tradesmen's  Ben.  Socy.  v. 
Du  Preez,  5  Sup.  Ct.  R.  269;  Malan  v.  Secretan,  Foord's  Sup.  Ct.  R.  94; 
Col.  Secy.  v.  Davidson,  Buchan.  1876,  131;  Scott  v.  Thicme,  21  Sup.  Ct. 
R.  370;  Mtembu  v.  Webster  (1904),  22  ib.  323.  I  am  here  much  in- 
debted for  information  and  references  to  cases  to  the  Hon.  Sydney  T. 
Jones,  lately  Judge-President  of  the  E.  Districts  Court. 

T2 


2/6        PRIVATE    LAW:    RIGHTS   'IN    PERSONAM/ 

CHAP.  xn.       The  binding  force   of  a  mere  agreement,  which  in  the 

Considera-     dayg  of   Bracton   was  unenforceable  in  the   Civil   Courts 
tion.  •' 

'nisi  aliquando  de  gratia*,  is  limited  in  another  way 
by  the  law  of  England;  which  recognises  no  promise, 
unless  it  be  under  seal,  for  which  there  is  no  '  con- 
sideration ^.'  It  has  been  laid  down  by  the  highest 
authority,  that,  although  'it  is  undoubtedly  true  that 
every  man  is,  by  the  law  of  nature,  bound  to  fulfil  his 
engagements,  it  is  equally  true  that  the  law  of  this  country 
suppUes  no  means  nor  affords  any  remedy  to  compel  the 
performance  of  an  agreement  made  without  sufficient  con- 
sideration. All  contracts  are  by  the  laws  of  England 
distinguished  into  agreements  by  specialty  and  agreements 
by  parol ;  nor  is  there  any  such  third  class  as  contracts 
in  writing.  If  they  be  merely  written  and  not  special- 
ties, they  are  parol,  and  a  consideration  must  be  proved  ^' 
A  '  consideration '  has  been  explained  to  be  '  any  act  of  the 
plaintiff  from  which  the  defendant,  or  a  stranger,  derives 
a  benefit  or  advantage,  or  any  labour,  detriment,  or  in- 
convenience sustained  by  the  plaintiff,  however  small  the 
detriment  or  inconvenience  may  be,  if  such  act  is  per- 
formed, or  inconvenience  suffered  by  the  plaintiff  with 


•  Fol.  loo  a.  Cf.  Glanville,  liv.  x.  c.  i8.  On  the  early  jurisdiction  of 
the  Court  of  Chancery  in  matters  of  contract,  see  an  article  by  Mr.  Justice 
Holmes  in  L.  Q.  R.  i.  p.  171. 

*  'In  one  sense,'  it  has  been  said,  'everything  is  form  which  the  law 
requires  in  order  to  make  a  promise  binding,  over  and  above  the  mere 
expression  of  the  promisor's  will.  Consideration  is  a  form  as  much  as 
a  seal.'  O.  W.  Holmes,  Common  Law,  p.  273.  Cf.  the  dictum  of  Lord 
Mansfield, '  I  take  it  that  the  ancient  notion  about  the  want  of  considera- 
tion was  for  the  sake  of  evidence  only,'  in  Pillans  v.  Van  Mierop,  3  Burr. 
1663.  In  Harvard  L.  R.,  xiii.  p.  448,  Holmes  maintains  that,  even 
in  Blackstone's  time, '  consideration'  had  not  been  generalised  from  the 
accumulating  instances  in  which  the  need  of  it  was  recognised.  Cf .  now 
Pollock,  Contract,  ed.  vii.  c.  4. 

'  Rann  v.  Hughes,  8  T.  R.  550.  After  this  decision  it  was  impossible 
to  admit  of  exceptions  to  the  rule,  as  had  been  suggested  by  Lord  Mans- 
field, u.  supra,  in  favour  of  written  mercantile  contracts.  As  to  nego- 
tiable instruments,  however,  see  Anson.  Contract,  ed.  x.  257. 


CONSIDERATION    IN    CONTRACT  277 

the  assent,  express  or  implied,  of  the  defendant,  or,  in  the  chap.  xii. 
language  of  pleading,  at  the  special  instance  and  request 
of  the  defendant*.'  The  topic  of  consideration  is  one 
which  is  dealt  with  by  the  English  and  American  Courts 
in  great  detail ;  most  of  the  rules  upon  the  subject  may, 
however,  be  reduced  to  two  principles.  On  the  one  hand, 
it  is  not  necessary  that  the  consideration  be  adequate :  so 
where  a  person  had  undertaken  gratuitously  to  carry  for 
another,  and  deposit  in  a  ceUar,  certain  hogsheads  of 
brandy,  and  he,  or  his  servants,  so  carelessly  performed 
his  promise  that  some  of  the  brandy  was  lost,  it  was 
held  that  the  owner  trusting  him  with  the  goods  was  a 
sufficient  consideration  to  oblige  him  to  a  careful  manage- 
ment^; and  when,  in  consideration  of  receiving  permission 
to  weigh  two  boilers,  a  promise  was  given  that  they  should 
be  returned  in  good  condition,  the  permission  was  held 
to  be  a  sufficient  consideration  ^  On  the  other  hand,  the 
consideration  must  have  some  value.  A  promise  there- 
fore,  to    perform  an   already   existing    legal  duty,  is   no 

consideration ;    and  a   past  fact,  although  it  may  be  an  Past  con- 

.    r,  .  ,.  ,  J  -J       i.'        sideration. 

mnuencmg    motive,  can  never   be  a  good   consideration, 

which  must  always  be  either  present  ('executed'),  i.  e.  an  act 

or  forbearance  given  for  a  promise,  or  future  C  executory ') 

i.  e.  a  promise  for  a  promise  *.    It   has  indeed   been  truly 

observed  that  a  consideration  must  always  be  present,  since 

a  future,  or  '  executory,'  consideration  consists  in  a  present 

promise  of  the  one  party  to  do  something   in  return  for 

the  present  promise  of  the  other  party. 

*  Per  Tindal,  C.  J.,  Laythoarp  v.  Bryant,  3  Scott,  238.  Cf.  Currie  v. 
Misa,  L.  R.  10  Ex.  162. 

^  Coggs  V.  Bernard,  i  Smith,  L.  C.  On  this  case  see  Holmes,  Common 
Law,  pp.196,  292.  The  principle  upon  which  it  proceeds  has  been  acutely 
criticised  by  Professor  E.  Grueber  in  the  L.  Q.  R.  ii.  p.  33. 

^  Bainbridge  v.  Firmstone,  8  A.  &  E.  743. 

*  On  the  alleged  exception  to  this  rule,  supported  by  the  case  of  Lamp- 
leigh  V.  Braithwait  (1616),  Hob.  105,  the  principle  of  which  is  adopted  by 
the  Indian  Contract  Act,  §  25,  see  Anson,  Contract,  ed.  x.  p.  no,  and 
the  remarks  of  Bowen,  L.  J.,  in  Stewart  v.  Casey  [1892]  i  Ch.  104. 


278       PRIVATE   LAW:    RIGHTS   «IN    PERSONAM.' 


CHAP.  XII. 

Modes  of 
strength- 
ening a 
contract. 


Rights  re- 
sulting 
from  a 
contract. 


Possible 
principles 
of  classifi- 
cation. 


In  addition  to  the  requisites  insisted  on  by  law  as 
essential  to  the  validity  of  a  contract,  other  modes  of 
strengthening  its  obligation  have  been  resorted  to  by  the 
contractors  themselves.  Some  of  these  are  of  a  super- 
natural character,  consisting  in  oaths,  by  which  the  Deity 
is  as  it  were  made  a  party  to  the  bargain.  They  are 
sometimes  taken  in  consecrated  buildings  or  in  the  pre- 
sence of  sacred  objects.  The  desired  effect  is  however 
now  more  ordinarily  produced  by  getting  third  parties  to 
guarantee  the  contract,  or  by  giving  property  by  way  of 
security  for  its  due  performances 

Supposing  a  contract  to  have  been  duly  formed,  what 
is  its  result?  An  obhgation  has  been  created  between  the 
contracting  parties,  by  which  rights  are  conferred  upon 
the  one  and  duties  are  imposed  upon  the  other,  partly 
stipulated  for  in  the  agreement,  but  partly  also  implied 
by  law,  which,  as  Bentham  observes,  'has  thus  in  every 
country  supplied  the  shortsightedness  of  individuals,  by 
doing  for  them  what  they  would  have  done  for  them- 
selves, if  their  imagination  had  anticipated  the  course  of 
nature  S'  The  character  of  those  rights  and  liabilities 
depends  of  course  in  each  case  upon  the  special  character 
of  the  contract. 

Contracts  have  been  classified  upon  many  different  prin, 
ciples.    With  reference,  for  instance,  to  — 

(i)  The  number  of  parties  on  either  side,  they  are  'joint' 
or  '  several ' ; 

(2)  Both  parties,  or  only  one,  being  bound  to  a  per- 
formance, they  are  'unilateral^'  or  'bilateral'  ('synallag- 
matic ') ; 

(3)  Special  solemnities  being  or  not  being  required  for 
their  formation,  they  are  '  formal '  or  '  formless ' ; 

'  Vid.  supra,  p.  222;  infra,  pp.  299,  300. 

*  Works,  iii.  p.  190.    Cf.  Hoadley  v.  Macleane,  10  Bing.  487. 

'  'Ex  uno  latere  constat  contractus.'    Dig.  xix.  i.  13.  29. 


CLASSIFICATION    OF   CONTRACTS.  279 

(4)  Their  being  entered  into  on  their  own  account,  or   chap,  xii 
necessarily  presupposing    some    other    contract,  they  are 

'  principal '  or  '  accessory ' ; 

(5)  Their  object  being  hberahty,  or  gain,  they  are 
*  gratuitous '  or  '  onerous ' ; 

(6)  Their  being  accompanied  or  not  being  accompanied 
by  the  delivery  of  an  object,  they  are  'real'  ('bailments*') 
or  '  consensual ' ; 

(7)  Their  depending  or  not  depending  upon  an  uncertain 
event,  they  are  '  aleatory '  or  not ; 

(8)  Their  being  conditional  or  unconditional. 

(9)  They  may  also  be  classified  with  reference  to  the 
particular  kind  of  benefit  promised,  e.  g.  exchange,  ren- 
dering of  services,  &c. 

Most  Codes  go  through  the  heads  of  contract  seriatim^  Neglect  of 
without  attempting  to  arrange  them  upon  any  principle,  ^j^^^*' 
The  order  of  the  French  Code,  for  instance,  is  the 
following:  marriage,  sale,  letting,  partnership,  loan  for 
use,  loan  for  consumption,  deposit,  wagering  contracts, 
mandate,  suretyship,  compromise,  pledge,  antichrese,  hypo- 
theque^.  This  is  hardly  an  advance  upon  the  list  of 
contracts  incidentally  given  by  Aristotle,  viz.  sale,  loan 
of  money,  security,  loan  for  use,  deposit,  letting  for 
hire  I 

It  is  however  not  only  possible,  but  instructive,  to  group 
the  various  contracts  according  to  their  natural  afl&nities, 
which  we  shall  now  endeavour  to  do*. 


^  Of.  infra,  p.  290.  Can  there  be  a  bailment  without  contract?  See 
the  cases  cited  in  Pollock  and  Wright,  Possession,  p.  41  n. 

^  Code  Civil,  arts.  1387-2203.    Cf,  the  German  Civil  Code,  494-779. 

'  Eth.  Nic.  V.  2.  13.  Other  divisions  will  be  found  in  Paley,  Moral 
Phil.  i.  p.  161;  Hegel,  Phil,  des  Rechts,  p.  119;  Trendelenburg,  Natur- 
recht,  Th.  ii.  §  105;   Ihering,  Der  Zweck  im  Recht,  i.  p.  32. 

*  The  need  of  some  reasonable  grouping  may  be  inferred  from  the  fact 
that  Mr.  Story,  jun.,  in  his  well-known  work  on  Contracts,  vol.  i.  p.  75, 
divides  them  into  i.  bailments,  2.  sale  and  warranty,  3.  guarantee, 
4.  between  landlord  and  tenant,  5.  between  master  and  servant. 


28o       PRIVATE   LAW:    RIGHTS   'IN    PERSONAM.' 


CHAP.    XII. 

Classifi- 
cation 
adopted. 


Contracts  may  be  divided,  in  the  first  place,  into  those 
which  are  '  principal,'  that  is  to  say,  which  are  entered  into 
without  an  ulterior  object,  and  those  which  are  '  accessory,' 
L  e.  which  are  entered  into  only  for  the  better  carrying  out 
of  a  principal  contract. 


Principal.  I,  Principal  contracts  may  be  subdivided  into  six  classes, 

according  as  their  object  is,  i.  alienation;  ii.  permissive 
use;  iii.  marriage;  iv.  service;  v.  negative  service;  vi. 
aleatory  gain. 


For  aliena- 
tion. 


Liberali- 
ties. 


i.  An  ahenatory  contract  may  be  a  mere  act  of  liberality 
on  one  side,  or  each  party  may  intend  by  means  of  it  to 
secure  some  advantage  for  himself.  In  the  former  case  it 
is  a  contract  to  give ;  in  the  latter,  a  contract  to  exchange. 

A  contract  to  give  is  usually  enforceable  only  in  certain 
rigidly  defined  cases.  Thus  in  England  it  must  be  entered 
into  by  deed,  in  France  before  a  notary  ^ ;  in  Roman  law, 
though  it  may  be  made  by  word  of  mouth,  it  must  be 
registered  if  dealing  with  a  value  exceeding  five  hundred 
solidi  ^  In  Roman  law  and  the  derived  systems  ungrateful 
conduct  on  the  part  of  the  beneficiary  would  be  ground 
for  a  rescission  of  the  gift.  Liberality  is  also  often 
restrained  by  the  claims  of  the  family,  or  the  creditors, 
of  the  giver.  Thus,  according  to  the  French  Code,  the 
father  of  one  child  cannot  give  more  than  half  of  his 
fortune  to  a  stranger',  and  a  'voluntary'  alienation  is 
not  allowed  by  the  law  of  England  to  defeat  the  claims 
of  creditors*. 

Gifts  in  contemplation  of  marriage,  which  is,  in  the 
language  of  English  law,  a  '  valuable '  consideration,  are 
not  considered  to  be  mere  liberalities.  The  rules  therefore 
which  regulate  the  presents  made  to  the  husband  by  means 
of  the  Roman  'dos,'  and  the  presents  made  to  the  wife 


'  Code  Civil,  art.  931. 
'  Code  Civil,  art.  913. 


^  Inst.  ii.  7.  2. 
*  13  Eliz.  c.  5. 


ALIEN ATORY   CONTRACTS.  28 1 

by  means  of  an  English  jointure,  or  marriage  settlement,  chap.  xii. 
are  not  those  which  would  regulate  merely  'voluntary' 
agreements. 

The  earliest  form  of  Exchange,  or  commutative  aliena- Exchange, 
tion,  is  Barter,  in  which  one  commodity  is  given  for  Barter, 
another.  So  the  Greeks  before  Troy  are  represented  as 
bartering  brass,  iron,  hides,  oxen,  and  slaves  for  wine '. 
The  exchange  of  commodities  for  a  price  in  money,  which 
superseded  this  ruder  form  of  dealing, '  quia  non  semper  nee 
facile  concurrebat,  ut  cum  tu  haberes  quod  ego  desiderarem, 
invicem  haberem  quod  tu  accipere  velles  ^,'  is  Sale.  After  Sale, 
a  long  controversy  between  opposing  schools  of  the  Roman 
jurists,  it  was  finally  settled  that  an  agreement  for  barter, 
'  permutatio,'  was  a  different  contract  from  an  agreement 
for  sale,  'emptio  vendition'  The  latter  is  an  agreement 
for  the  future  transfer  of  property, '  merx,'  in  consideration 
of  the  payment,  or  an  undertaking  for  the  future  payment, 
of  a  price  in  money,  'pretium.'  When  the  price  falls 
utterly  short  of  the  true  value  of  the  thing  sold,  the 
contract  is,  under  some  systems,  rescissible  on  the  ground 
of  'laesio  enormis*.' 

Special  formaUties  have  been  imposed  upon  contracts  for 
the  sale  of  certain  kinds  of  property,  such  as  '  res  mancipi ' 
by  Roman  law,  and  '  real  property,'  and  goods  of  the  value 
of  ten  pounds  or  upwards^  by  the  law  of  England.  The 
Anglo-Saxon  laws  directed  every  sale  to  be  contracted 
before  credible  witnesses,  and  prohibited  the  sale  of  any- 
thing   above  the  value  of  2  of/,  except  in  market   overt. 

'  II.  vii.  472.  "  Dig.  xviii.  i.  i.  '  Inst.  iii.  23. 

*  This  doctrine  originated  in  285  a.  d.,  when  a  Rescript  of  Diocletian 
and  Maximian  ordered  that  a  sale  of  land  for  less  than  half  its  value 
should  be  rescissible,  unless  the  purchaser  should  elect  to  pay  a  fair 
price.  Cod.  iv.  44.  2.  For  the  application  of  the  principle  in  modem 
codes,  see  Holtzendorff,  Rechtslexicon,  ii.  p.  623.  It  is  excluded  in  com- 
mercial transactions  by  the  Handelsgesetzbuch,  §  286,  and  was  abolished 
for  Cape  Colony  by  Act  No.  8,  1879,  §  8.  For  a  note  of  a  recent  case  in 
British  Guiana,  see  Joum.  Comp.  Leg.,  N.  S.,  xii.  p.  506. 

'  Supra,  p.  273  n. 


282       PRIVATE    LAW:    RIGHTS   'IN    PERSONAM.' 

CHAP.  XII.  Subject  to  the  observance  of  such  formaUties,  where  re- 
quired, the  contract  is  complete  when  the  price  is  agreed 
upon  * ;  and  the  vendor  is  bound  to  place  the  property 
at  the  disposal  of  the  vendee,  who  is  then  immediately 
bound  to  pay  the  price,  unless  the  sale  was  on  credit. 
The  vendor  is  usually  protected  by  being  given  a  'lien 
upon  moveable  property  sold,  i.  e.  a  right  to  retain  pos- 
session of  it  till  the  price  is  paid^  The  law  of  England 
gives  this  further  protection,  known  as  the  right  of  '  stop- 
page in  transitu,'  to  the  unpaid  vendor,  that  he  is  allowed 
even  after  he  has  parted  with  the  possession  of  the  goods, 
while  they  are  still  in  transit  and  not  delivered  to  the 
vendee,  on  hearing  of  the  insolvency  of  the  latter,  to 
reclaim  them  and  determine  the  contract. 
Warran-  There    is  much   divergence    of  view  between  different 

systems  of  law  as  to  the  extent  to  which  a  vendor  im- 
pliedly warrants  his  title  to  the  property  sold  or  its  quality. 
'  The  guarantee,'  says  the  French  Code, '  which  the  vendor 
owes  to  the  vendee  is  twofold.  It  regards,  in  the  first 
place,  the  peaceable  possession  of  the  thing  sold,  in  the 
second  place,  the  latent  faults  of  the  thing,  or  its  red- 
hibitory vices  ^'  This  is  in  general  correspondence  with 
the  rules  of  Roman  law,  according  to  which  the  vendor, 
though  he  did  not  undertake  to  make  the  purchaser  owner 
of  the  property,  did  guarantee  him  against  being  evicted 
from  it*,  and  also  against  all  latent  defects  in  the  thing 
sold,  on  discovery  of  which  the  purchaser  might  proceed 
against  him  by  the  actions  '  redhibitoria,'  for  rescission  of 
the  contract,  or  '  quanti  minoris,'  for  proportional  reduction 
of  the  price.  The  law  of  England  is  more  lenient  to  the 
vendor,  its  general  principle  being  '  caveat  emptor.'  With 
reference  to  quahty,  the  exceptions  to  this  principle  are 

'  On  the  actual  transfer  of  ownership,  vid.  supra,  p.  209. 
'  This  was  unnecessary  in  Roman  law,  where,  unless  credit  was  gi^'en, 
no  property  passed  before  payment. 

'  Art.  1625.  *  Dig.  xxi.  2.  i. 


CONTRACTS   FOR   USE.  283 

very  few.    A  warranty  of  title  was  at  one  time  held  to  be   chap.  xii. 

implied  by  a  feoffment,  and  the  use  of  the  words  *  grant ' 

or  'give'  in  a  conveyance  was  treated  as  equivalent  to  a 

covenant  for  quiet  enjoyment,  but  this   construction  has 

been  negatived  by  a  modern  Act  of   Parliament*.    The 

rules  as  to  implied  warranties,  and  conditions,  as  to  title 

or  quality  on  a  sale  of  goods  have  been  recently  codified  I 

ii.  Contracts  for  permissive  use  are:    i.  Loan  for  con- For  use. 
sumption,  'mutuum';    2.    Loan  for  use,  '  commodatum ' ; 
3.  Letting  for  hire, '  locatio  conductio.' 

I.  A  Loan  for  consumption  takes  place  when  money  or  Mutuum. 
things  '  quae  pondere,  numero,  mensurave  constant,'  some- 
times called  'res  fungibilesV  are  given  to  a  man  on  the 
understanding  that  he  shall  on  a  future  day  return  to  the 
giver,  not  necessarily  the  things  themselves,  but  their 
equivalent  in  kind.  Since  the  object  given  becomes  the 
property  of  the  borrower,  the  contract  might  be  regarded 
as  one  of  alienation.  It  is  however  practically  one  for  use 
only,  since  either  the  identical  object,  or  a  similar  object, 
has  to  be  returned  to  the  lender.  The  contract  takes  of 
course  many  forms.  Thus  money  at  a  banker's  is  a  loan 
for  consumption  to  the  banker,  to  be  returned  when,  and 
as,  it  is  called  for  by  checques.  The  loan  is,  as  a  rule, 
gratuitous,  interest  not  being  usually  due  upon  it,  in  the 
absence  of  special  agreement.  The  highest  amount  of  Usury, 
interest  which  may  be  agreed  upon  has  very  generally 
been  fixed  by  law;  but  the  inefflcacy  of  thus  attempting 
to  protect  borrowers  against  extortion  was  thought  to 
have  been  established  by  Bentham,  and  the  English  usury 
laws  were  repealed  by  a  Statute  of  the  late  reign  *. 

'  8  &  9  Vict.  c.  106.  s.  4. 

'  See  the  Sale  of  Goods  Act,  1893,  56  &  57  Vict.  c.  71,  ss.  12-15. 

^  Supra,  p.  1 01.  The  various  theories  as  to  the  true  meaning  of  these 
distinctions  are  exhaustively  discussed  in  '  I^es  choses  fongibles  et  les 
choses  de  consommation,'  par  E.  Roguin,  Lausanne,  1892. 

*  17  &  18  Vict.  c.  90.  See,  however,  now  'The  Money-lenders  Act, 
1900,'  63  &  64  Vict.  c.  5. 


284      PRIVATE    LAW:    RIGHTS    'IN    PERSONAM.' 


Commoda- 
tum. 


CHAP.  XII.  The  sole  duty  of  the  borrower,  in  the  absence  of  any 
liability  for  interest,  is  to  return  objects  of  the  same 
quantity  and  quality  as  those  which  he  has  received,  and 
no  excuse  will  avail  him  for  the  non-performance  of  this 
duty. 

2.  In  a  Loan  for  use,  which  is  essentially  gratuitous, 
the  duty  of  the  borrower  is  to  return  the  identical  thinjj: 
lent,  and  to  use  it  in  the  meantime  in  accordance  with 
the  terms  of  the  contract.  He  is  not  generally  responsible 
for  ordinary  wear  and  tear,  nor  for  loss  by  theft,  but, 
since  the  contract  is  whoUy  for  his  benefit,  he  will  be  gene- 
rally expected  to  bestow  great  care  upon  the  tiling. 
Letting.  3.  Letting  differs   from  Loan  for  use  in  being  for  the 

advantage  of  both  parties,  since  the  hirer  pays  a  rent, 
'merces,'  to  the  latter  \  A  hirer  therefore  is  not  bound, 
in  the  absence  of  express  stipulation,  to  exercise  the  same 
care  as  is  expected  from  a  borrower. 

A  lease  of  lands  is  usually  accompanied  by  greater 
formalities  than  a  letting  of  moveables.  If  for  more  than 
three  years,  it  must,  according  to  English  law,  be  by  deed. 
Different  views  are  taken  of  the  right  of  the  hirer  to 
sub-let;  of  the  effect  of  the  accidental  destruction  during 
the  term  of  the  thing  let;  of  the  extent  to  which  the 
lessor  guarantees  that  the  thing  shall  prove  suitable  for 
the  purpose  for  which  it  is  hired ;  of  the  respective  rights 
of  landlord  and  tenant  in  the  case  of  improvements  effected 
by  the  latter,  especially  as  to  those  additions  to  a  building 
which  English  law  calls  'fixtures,'  and  with  regard  to 
*  emblements,'  or  crops  annually  produced  by  the  labour 
of    the  cultivator   ('fructus    industriales,'  as  opposed    to 


*  Under '  locatio  conductio '  Roman  law  included  not  only  the  hiring  of 
the  use  of  a  thing, '  rei,'  but  the  hiring  of  services, '  operarum '  (which  we 
shall  treat  separately) ,  and  agreements  for  the  doing  of  a  given  piece  of 
work,  'operis.'  With  reference  to  this  last-mentioned  application  of  tlie 
contract,  the  usual  terminology  is  inverted.  The  person  for  whom  the 
work  is  to  be  done  is  the  '  locator,'  the  person  who  undertakes  to  do  it  is 
the  'conductor.'     Cf.  C!ode  Civil,  art.  1708. 


CONTRACTS    TO   MARRY.  285 

'fructus  naturales'),  which  may  be  growing  on  the  land  chap.  xii. 
at  the  expiration  of  the  tenancy. 

iii.  Engagements  to  marry,  '  sponsalia  \'  are  easily  dis-  To  marry, 
tinguishable  from  marriage  itself.  Just  as  an  agreement 
for  sale  gives  rise  only  to  personal  claims,  while  an  actual 
conveyance  creates  new  real  rights,  so  an  engagement  is 
a  contract  'per  verba  de  futuro,'  creating  a  right  'in 
personam'  to  its  fulfilment  at  the  appointed  time,  while 
marriage  is  entered  into  'per  verba  de  praesenti,'  and 
creates  a  '  status.'  The  former  is  a  true  obligatory  contract 
such  as  those  which  we  are  now  considering.  The  latter 
is  a  contract  only  in  that  wide  sense  of  the  term  in  which 
it  may  be  apphed  to  any  agreement  affecting  the  legal 
rights  of  the  parties,  but  leaving  no  outstanding  claims 
between  them  ^. 

This  theory,  developed  by  the  canonists  from  the  Betrothal 
doctrines  of  Roman  law,  has  at  length  superseded  the^"  J"^'^' 
theory  of  the  Teutonic  races  which  attached  more  im- 
portance to  the  betrothal  than  to  the  subsequent  wedding. 
Betrothal,  'Verlobung,'  seems  to  have  been  a  sale  of  the 
woman  by  her  guardian  for  a  'pretium  puellae,'  'Mund- 
schatz,'  or  '  Witthum.'  This  came  to  be  represented  by  a 
handsel,  and  was  not  paid  over  till  the  wedding, '  Trauung,' 
actually  took  place.  In  later  times  the  betrothal  was 
the  woman's  own  act,  and  the  handsel  was  payable  to 
herself '. 

The  distinction  between  '  sponsalia '  and  'matrimonium'ciandes- 
has    been    to    some    extent    obscured    by  another  which  j^^j^" 
divides  actual  marriages  into  'clandestine'  and  ' regular.' "^'''"^'^se^^ 

^  '  Sponsalia  sunt  mentio  et  repromissio  nuptiarum  futuranun.*  Dig. 
xxiii.  I.  I. 

^  Supra,  pp.  101,239.  The  canonists  distinguish 'sponsalia  de  futuro* 
(betrothal)  from  'sponsalia  de  praesenti'  (marriage). 

'  See  Baring-Gould,  Germany,  Present  and  Past,  p.  98,  citing Friedberg, 
Verlobung  und  Trauung,  1876. 


286      PRIVATE    LAW:    RIGHTS   MN    PERSONAM. 


CHAP.  XII.  A  clandestine  marriage  is  one  which  rests  merely  on  the 
agreement  of  the  parties.  The  Christian  Church,  adopting 
from  Roman  law  the  maxim  that  'consensus  facit  matri- 
monium,'  though  it  stigmatised  such  marriages  as  irregular, 
because  not  made  'in  facie  ecclesiae,'  nevertheless  upheld 
them  as  valid,  till  the  Council  of  Trent  declared  aU 
marriages  to  be  void  unless  made  in  the  presence  of 
a  priest  and  witnesses.  Before  the  time  of  the  Council, 
and  after  it  in  countries,  such  as  France  and  England, 
where  the  decree  in  question  was  not  received,  either  of  the 
parties  to  a  clandestine  marriage  '  per  verba  de  praesenti ' 
could  compel  the  other,  by  a  suit  in  the  ecclesiastical  court, 
to  solemnise  it  in  due  form.  It  has  been  judicially  stated 
that  the  English  common  law  never  recognised  a  contract 
'per  verba  de  praesenti'  as  a  valid  marriage  till  it  had 
been  duly  solemnised  \  although  it  recognised  it,  under  the 
name  of  a  '  pre-contract  of  marriage,'  a  term  which  covered 
also  promises  'per  verba  de  futuro,'  down  to  the  middle 
of  the  last  century,  as  giving  either  of  the  parties  a  right 
to  sue  for  celebration,  and  as  impeding  his  or  her  marriage 
with  a  stranger  to  the  contract  ^. 

It  has  been  much  discussed  whether  an  engagement  to 
marry '  per  verba  de  futuro,'  as  distinguished  from  an  actual 
marriage,  whether  'clandestine'  or  'regular,'  ought  to  be 
enforced  by  law.  It  seems  to  have  been  the  old  practice 
in  Latium,  and  probably  also  at  Rome,  for  the  father  of 
a  girl  to  enter  into  a  stipulation  with  her  lover  on  which 
he  could  bring  an  action  ^  According  to  later  Roman  law 
'  sponsalia '  were  entered  into  without  any  formalities,  and 
could  be  repudiated  at  will  by  either  party,  though  if 
'arrhae'  had  been  given,  the  party  which  broke  off  the 
match  would  lose  twice  the  amount  *.    It  must  however 


The  action 
for  breach 
of  promise. 


»  R.  V.  Millis,  lo  CI.  &  Fin.  655. 

^  These  consequences  were  removed  by  26  Geo.  II.  c.  33. 

'  Gell.  iv.  4;   Dig.  xxiii.  i.  2. 

-  'Alii  desponsatae  renuntiare  condition!  et  nubere  alii  non  prohi- 


CONTRACTS    FOR   SERVICES.  287 

be  remembered  that  marriage  itself  could  be  dissolved  with  chap.  xii. 
equal  ease.  Promises  to  marry  were  enforced  under  the 
canon  law  by  ecclesiastical  censures,  which  would  be  helped 
by  the  Court  of  Chancery  *.  Actions  for  breach  of  promise 
of  marriage  seem  to  have  first  gained  a  footing  in  England 
in  the  reign  of  Charles  I,  when  it  was  held  that  the 
promise  is  a  '  good '  and  not  merely  a  '  spiritual '  considera- 
tion, and  that  whether  it  be  made  to  a  man  or  to  a  woman  ^. 
Modern  continental  law  admits  very  sparingly  of  such 
an  action.  It  is  recognised  by  the  Prussian  Landrecht  ^ 
but  expressly  denied  by  the  code  of  Italy  ^  In  the  silence 
of  the  French  Code,  the  courts  have  expressed  contradictory 
views  upon  the  subject,  but,  according  to  the  better  opinion, 
interference  with  the  freedom  of  matrimonial  choice  being 
contrary  to  public  policy,  no  action  will  lie  unless  the 
plaintiff  has  sustained  a  'prejudice  reelV  and  the  Austrian 
and  German  codes  contain  express  provisions  to  this  effect  \ 

iv.  The  more  important  contracts  for  services  are:  i.  for  For 
care- taking;  2.  for  doing  work  on  materials ;  3.  for  carriage ;  ^'^'°^* 
4.  for  professional  or  domestic  services;  5.  for  agency; 
6.  for  partnership.  Service  of  any  kind  may  be  to  be 
rendered  either  gratuitously  or  for  reward,  the  respon- 
sibility of  undertaking  to  render  it  being  considerably 
greater  in  the  latter  case  than  in  the  former  ^    Thus  the 


bentur.'  Cod.  v.  i.  i.  Cf.  Frag.  Vat.  262;  Cod.  Theod.  iii.  5;  Dig. 
xxiii.  I,  xxiv.  2.  2.  2.  According  to  Paulus,  'inhonestum  visum  est  vin- 
culo poenae  matrimonia  obstringi,  sive  futura,  sive  iam  contracta.'  Dig. 
xlv.  I.  134  pr. 

'  Deer.  Greg.  lib.  iv.  i.  10;  Ayliffe,  Parergon,  p.  250.  I  am  indebted  for 
these  two  references  to  Mr.  W.  F.  Webster,  of  Lincoln's  Inn.  Cf.  infra, 
p.  317  n. 

^  Roll.  Abr.  22;   2  Bulstr.  48.  '  Th.  ii.  tit.  i.  ss.  75,  82. 

*  Art.  53. 

*  i.  e.  it  is  held  that  the  remedy,  if  any,  is  under  art.  1382  of  the  Code, 
and  not  under  art.  1142. 

*  Austrian  Code,  arts.  45,  46;  German  Civil  Code,  1297- 1300. 

'  On  contracts  of  service  as  affected  by  such  provisions  as  those  of  the 


288      PRIVATE    LAW:     RIGHTS   'IN    PERSONAM.' 


Deposit. 


OHAP.  xu.  gratuitous  contractor  is,  in  English  law,  not  liable  for 
an  omission  to  perform,  and  liable  only  for  gross  negligence 
in  performing. 

1.  Gratuitous  care-taking  of  an  object,  commonly  called 

*  deposit,'  is  well  defined  as  '  a  naked  bailment  of  goods  to 
be  kept  by  the  bailee  without  reward.'    Of  this  contract, 

*  sequestratio '  and  the  'depositum  miserabile,'  or  'neces- 
sarium,'  are  recognised  as  species  by  the  civilians  \  The 
former  occurs  when  an  object,  the  right  to  which  is 
disputed,  is  placed  in  the  custody  of  a  third  party,  pending 
the  decision  of  the  dispute ;  the  latter,  when  the  deposit  is 
made  under  circumstances,  such  as  fire  or  shipwreck,  which 
leave  the  depositor  no  choice.  Care-taking  for  reward 
is  exercised,  for  instance,  by  warehousemen,  wharfingers, 
the  *  cloak  rooms'  of  railway  companies,  livery-stable 
keepers,  and  inn-keepers.  The  very  extensive  liabilities 
attaching  to  the  last-mentioned  class  of  depositaries  by 
the  English  common  law  have  been  much  reduced  by  a 
modern  Act  of  Parliament^. 

2.  A  gratuitous  contractor  to  do  work  upon  materials 
belonging  to  the  other  contractor  is  usually  liable  only 
for  gross  negligence  in  the  doing  of  it.  If  the  contract 
be  for  reward,  each  of  the  parties  is  responsible  to  the 
other  for  the  exercise  of  a  high  degree  of  care  ^  English 
law  gives  to  the  person  who  does  the  work  a  '  lien '  upon 
the  article  upon  which  he  has  done  it  till  he  has  been 
paid  for  his  trouble  *.    A  gratuitous  agreement  to  do  work 


Work  on 
materials 


Ck)de  Civil,  arts.  1133,  1135,  and  of  the  Burgerliches  Gesetzbuch,  138,  see 
V.  Brants,  Le  salaire  iisuraire  devant  la  loi  et  les  juges  allemands,  in  the 
Bulletin  de  1' Academic  Royale  de  Belgique  (Classe  des  Lettres,  &c.),  1905, 

P-  730- 

'  I  Dig.  xvi.  3.  i;  xxiv.  3.  22;  Code  Civil,  arts.  1947-1963. 

'  26  &  27  Vict.  c.  41. 

^  This  contract  is  narrower  than  'locatio  conductio  operis,'  which 
covers  not  only  agreements  for  working  upon  materials,  but  also  for 
doing  any  definite  piece  of  work,  such  as  navigating  a  ship  from  one  port 
to  another. 

*  Supra,  p.  224. 


CONTRACTS    OF  CARRIAGE.  289 

upon  materials  belonging  to  the  contractor,  for  the  benefit   chap.  xii. 

of  another,  would  amount  to  a  promise  to  give  an  article 

as  yet  unfinished.    If  the  work  is  to  be  done  for  reward,  as 

when  a  builder  undertakes  to  construct  a  house  or  a  tailor 

to  make  a  coat,  it  may  be  questioned  whether  the  contract 

is  one  of  sale,  or  for  the  performance  of  services  \ 

3.  A  contract  of  carriage  may  relate  to  conveyance  by  Carriage, 
land  or  by  sea,  and  to  goods  or  to  passengers.  Carriers 
of  goods,  besides  their  duty  to  carry,  share  many  of  the 
responsibilities  of  depositaries,  and  especially  of  inn- 
keepers, in  respect  of  the  property  confided  to  them. 
The  liability  of  persons  of  all  these  classes  in  Roman 
law  was  introduced  by  the  Praetor's  edict:  'nautae,  cau- 
pones,  stabularii,  quod  cuiusque  salvum  fore  receperint, 
nisi  restituent,  in  eos  indicium  dabo^.'  According  to 
English  law,  a  'common  carrier'  is  bound  to  take  all 
goods  of  the  kind  which  he  usually  carries,  unless  his 
conveyance  is  full,  or  the  goods  be  specially  dangerous ; 
but  may  charge  different  rates  to  different  customers. 
He  is  supposed  to  warrant '  safely  and  securely  to  carry,' 
and  so  is  said  to  be  'an  insurer  against  all  loss  not 
immediately  caused  by  "the  act  of  God'"  or  the  king's 
enemies.'  He  is  thus  responsible,  even  though  he  is 
robbed,  or  the  goods  are  accidentally  burnt.  By  recent 
legislation  his  right  of  limiting  his  liability  by  public 
notice  has  been  much  curtailed ;  while,  on  the  other  hand, 
he  is  no  longer  to  be  liable  for  the  loss  of  articles  the 


*  Inst.  iii.  24.  4;  Dig.  xviii.  i.  65,  xix.  2.  22.  2.  Of.  Lee  v.  GriflSn, 
I  B.  &  S.  272. 

^  Dig.  iv.  9.  I.  pr.     Of.  an  art.  in  L.  Q.  R.  xii.  p.  118. 

'  See  the  remarks  of  Sir  F.  Pollock,  Contract,  ed.  vii.  p.  414,  on '  Act  of 
God,'  which  lie  is  unable  to  define  more  precisely  than  as  'an  event 
which,  as  between  the  parties,  and  for  the  purpose  of  the  matter  in  hand,  can- 
not be  definitely  foreseen  or  controlled.'  Cf .  Bailey  v.  De  Crespigny,  L.  R. 
4  Q.  B.  185.  'Vis  raaior,'  says  Gains,  'quam  Graeci  Oeov  $lav  appellant, 
non  debet  conductori  damnosa  esse,  si  plus  quam  tolerabile  est  laesi 
fuerint  fructus.'  Dig.  xix.  2.  25.  6.  As  to  the  objective  and  subjective 
meanings  of  'vis  maior,'  see  L.  Q.  R.  xii.  p.  120. 

HOLLAND  U 


290      PRIVATE    LAW:    RIGHTS  *  IN    PERSONAM.' 

CHAP.  XII.  value  of  which  shall  exceed  the  sum  of  ;^io,  unless  the 
sender  has  declared  their  value  and  paid  a  higher  rate 
for  their  carriage  accordingly  \  An  ordinary  common 
carrier  may  still  limit  his  liability  by  a  special  contract, 
but  such  a  contract,  if  made  by  a  railway  or  canal 
company,  must  not  only  be  signed  by  the  sender,  but 
must  also  be  such  as  the  Courts  will  hold  to  be  just 
and  reasonable.  And  a  railway  is  not  allowed  to  charge 
different  rates  to  different  customers  ^. 

The  carriage  of  goods  by  sea  is  usually  regulated  by  a 
special  contract  between  the  ship-owner  and  the  freighter 
called  a  '  charter  party,'  by  which  the  owner  is  generally 
relieved  from  Uability  for  the  act  of  God  and  the  king's 
enemies.  His  liability  has  also  been  limited  by  English 
statute  law  to  the  value  of  £8  per  ton  of  the  ship's  ton- 
nage ^  nor  is  he  responsible  for  loss  by  fire,  nor  for  very 
valuable  articles  unless  declared  and  paid  for  specially  ^ 
The  payment  to  be  made  by  the  sender  of  the  goods  to 
the  owner  of  the  ship  is  called  '  freight.' 

Carriers  of  passengers  do  not  insure  their  safety,  but  are 
usually  liable  for  injuries  caused  to  them  by  neglect  or 
unskilfulness  ^.    The  liabihty  of  a  gratuitous  carrier  would 
be  similar  to  that  of  a  gratuitous  depositary  ®. 
Profes-  4.  Each  of  the  heads    of    service    hitherto    considered 

service.  implies  a  'bailment,'  or  handing  over  of  an  object  with 

reference  to  which  some  work  is  to  be  done.  In  profes- 
sional and  domestic  services  no  bailment  is  presupposed, 
the  undertaking  being  merely  for  the  performance  by  one 
party  of  certain  acts  for  the  benefit  of  the  other.  Such 
an  undertaking  for  reward  is  described  in  the  language  of 

»  II  Geo.  IV.  and  i  WiU.  IV.  c.  68. 

*  See  17  &  18  Vict.  c.  31;  36  &  37  Vict.  c.  48;  and  51  &  52  Vict.  c.  25. 
'  See  now  the  Merchant  Shipping  Act,  1894,  57  &  58  Vict.  c.  60.  s.  503. 

*  lb.  s.  502. 

'  See  E.  I.  Ry.  Co.  v.  K.  Muckerjee  [1900]  A.  C.  396. 
'  For  the  view  which  would  treat  the  liability  of  carriers,  &c.,  as 
existing  apart  from  contract,  v.  supra,  p.  247. 


DOMESTIC   SERVICE.  291 

Roman  law  as  '  locatio  conductio  operarum.'  The  exercise  chap.  xii. 
of  certain  professions  was  thought  by  the  Romans  to 
be  of  too  liberal  a  nature  to  be  capable  of  leading  to  a 
compensation  in  money  recoverable  by  judicial  process. 
Advocates,  teachers  of  law  or  grammar,  philosophers,  sur- 
veyors, and  others  were  accordingly  incapable  of  suing 
for  their  fees  \  A  similar  disability  attaches  to  barristers 
under  English  law  to  this  day,  and,  so  long  as  the  Royal 
College  chooses  to  maintain  a  by-law  to  that  effect,  to 
physicians  also^  Those  who  thus  give  their  aid  gratui- 
tously are,  as  a  rule,  free  from  liability  for  the  negligent 
performance  of  their  self-imposed  task ;  but  a  professional 
person,  employed  for  reward,  is  held  to  guarantee  that 
he  is  reasonably  skilful  and  competent,  and  can  recover 
nothing  for  unskilful  work^ 

The  position  of  a  domestic  servant  still  exhibits  traces  Domestic 
of  the  status  of  slavery  out  of  which  it  undoubtedly  has 
everywhere  been  developed  *.  A  servant  is  usually  entitled 
to  his  wages  although  prevented  by  sickness  from  doing 
his  work.  The  rule  of  English  law  that  a  master  is  not  in 
general  liable  for  injuries  which  his  servant  may  sustain 
in  the  course  of  his  employment  or  which  arise  from  the 
negligence  of  a  fellow-servant  has  led,  especially  when 
applied  to  the  working  of  large  undertakings,  such  as 
railways,  to  a  good  deal  of  hardship,  and  has  recently 
been  modified  ^ 

5.  We  have  already  had  occasion  to  consider  how  far  the  Agency. 


*  '  Non  crediderunt  veteres  inter  talem  personam  locationem  et  con- 
ductionem  esse,  sed  magis  operam  beneficii  loco  praeberi:  et  id  quod 
datur  ei  ad  remunerandum  dari,  et  inde  honorarium  appellari.'  Dig. 
xi.  6.  I  pr. 

^  See  21  &  22  Vict.  c.  90.  s.  31,  now  superseded  by  49  &  50  Vict.  c.  48. 
s.  6;  Gibbons  v.  Budd,  2  H.  &  C.  92. 

'  Cf.  Grill  V.  Genl.  Iron  Screw  Colliery  Co.,  L.  R.  i  C.  P.  612. 

*  A  contract  to  serve  during  one's  whole  life  a  particular  master 
is  allowed  by  English  law.  Wallis  v.  Day,  2  M.  &  W.  273,  1  Sm. 
L.  C.  361. 

*  Supra,  p.  150. 

Ua 


292      PRIVATE    LAW  :    RIGHTS   '  IN    PERSONAM.' 

CHAP.  XII.  rights  and  liabilities  of  contracting  parties  may  be  affected 
by  their  contract  being  made  through  the  intervention  of 
an  agent  \  The  rights  and  liabilities  in  question  were 
those  of  the  principal  contractors,  as  against  one  another, 
or  of  the  agent  in  those  exceptional  cases  in  which,  by  the 
force  of  circumstances,  he  himself  acquires  the  rights  or 
incurs  the  liabiUties  of  a  principal.  The  questions  which 
thus  arise  out  of  contracting  by  agency  are  of  a  wholly 
different  character  from  those  which  arise  out  of  '  the  con- 
tract of  agency,'  which  is  the  topic  now  to  be  discussed. 

This  is  a  species  of  contract  for  services,  which  is  entered 
into,  not  between  two  principals,  but  between  a  principal 
and  his  agent.  The  undertaking  of  the  agent,  'mandata- 
rius,'  is  to  represent  his  principal,  'mandans,'  in  dealings 
with  third  parties  ^ 

Growth  of  The  possibility  of  such  a  representation  seems  to  be 
admitted  only  in  developed  systems  of  law.  In  the  older 
Roman  law  a  man  could  be  represented  in  dealings  with 
others  only  by  persons  'in  his  power,'  such  as  a  slave  or 
unemancipated  son,  and  only  by  such  of  their  acts  as  were 
for  his  advantage.  The  contractual  agency  of  a  stranger 
was  only  gradually  introduced,  and  was  long  recognised 
only  as  a  gratuitous  act  of  friendship.  'Originem  ex 
officio  atque  amicitia  trahit:  contrarium  ergo  est  officio 
merces,'  says  Paulus^  The  *  mandatarius,'  though  thus 
gratuitous,  was  obliged  to  exhibit  in  the  execution  of 
his  voluntary  promise  the  highest  degree  of  care,  and 
in  default  was  not  only  liable  for  damages,  but  was  also 
punished  with  infamy.  His  principal,  on  the  other  hand, 
was  bound  only  to  indemnify  him  for  any  liability  in- 

*  Supra,  p.  265. 

'  Agency,  if  undertaken  for  the  benefit  of  the  principal,  is,  in  the 
language  of  the  civilians,  'mandatum  simplex'  ;  if  for  the  benefit  of 
a  third  party,  '  mandatum  qualificatum.'  It  is  then  a  species  of  '  inter- 
cessio.'   Cf.  Gliick,  Pand.  xv.  p.  290. 

'  Dig.  xvii.  I.  I.  4. 


THE   CONTRACT   OF   AGENCY.  293 

curred  in,  or  expenses  incident  to,  the  execution  of  the   chap.  xii. 
contract.    A  payment  might  indeed  be  specially  promised 
to  the  mandatary  for  his  service,  but  was  disguised  under 
the  name  of  a  'honorarium,'  and  could  be  recovered  only 
under  an  exceptional  procedure. 

The  importance  of  agency,  defined  by  the  French  Code 
as  '  an  act  by  which  one  person  gives  to  another  the  power 
to  do  something  for  the  principal  and  in  his  name  V  has 
greatly  increased  with  the  development  of  business  trans- 
actions. The  presumption,  according  to  the  Code,  is  in 
favour  of  its  being  gratuitous,  but  English  law,  in  the 
absence  of  evidence  of  a  contrary  intention,  would  imply 
a  promise  of  reasonable  remuneration.  Under  any  system, 
the  principal  will  doubtless  be  held  to  guarantee  the  agent 
against  expenses  and  personal  liability,  and  the  agent 
will  be  obliged  to  conduct  the  business  of  his  principal 
with  care,  and,  as  a  rule,  not  to  delegate  its  management 
to  another.  The  contract  must  for  some  purposes  be 
entered  into  in  a  special  form,  as  by  a  '  power  of  attorney,' 
or  before  a  notary.  The  rights  and  liabilities  which  result 
from  it  are  terminated,  subject  to  certain  qualifications, 
by  the  death  or  bankruptcy  of  either  principal  or  agent; 
by  efflux  of  time,  when  a  period  is  fixed  for  the  perform- 
ance of  the  act  to  be  done  by  the  agent ;  by  performance 
of  the  act ;  by  revocation  of  authority  on  the  part  of  the 
principal;  by  renunciation  of  the  commission  on  the  part 
of  the  agent. 

Agents  are  of  various  classes.     Among  the  more  im-  Classes  of 
portant  classes   recognised  by  English   law  are  '  factors,' ^^" 
who  are  employed  to  sell  goods  for  their  principal.    They 
have  actual  possession  of  the  goods,  and  usually  sell  them 
in   their   own   name  ^.    '  Brokers '  are   mere    mediums  of 
communication  between  buyer  and  seller.    'Del  credere' 

'  Art.  1984;  cf.  Code  de  Commerce,  art.  91. 

^  A  factor  could  not  pledge  the  goods  entrusted  to  him,  till  he  was 
empowered  to  do  so  by  the  'Factors  Acts,'  consolidated  in  1889. 


294      PRIVATE    LAW:    RIGHTS  'IN   PERSONAM/ 

CHAP.  XII.  agents  for  the  sale  of  goods,  in  consideration  of  a  higher 
payment  than  usual,  become  responsible  for  the  solvency 
of  the  person  to  whom  they  sell  them.  Auctioneers, 
although  before  the  goods  are  knocked  down  they  are 
agents  only  for  the  seller,  become  afterwards  agents  for 
the  buyer  also. 
Partner-  6.    When    several    persons    unite    for    the    purpose    of 

carrying  on  business  in  common,  which  is  usually  done 
upon  the  terms  that  each  of  them  shall  be  an  agent  for 
all  the  rest,  the  contract  is  called  partnership,  'societas,' 
and  takes  various  shapes,  according  to  the  business  con- 
templated. It  is  defined  in  the  French  Code  as  '  a  contract 
by  which  two  or  more  persons  agree  to  place  something 
in  common,  with  a  view  of  sharing  the  profit  which  may 
result \'  By  'the  Partnership  Act,  1890,'  the  contract  is 
defined  as  'the  relation  which  subsists  between  persons 
carrying  on  business  in  common  with  a  view  to  profit  I' 
In  the  widest  sense  of  the  term,  a  partnership  might  be 
'universorum  bonorum,'  relating  to  all  the  property  of 
the  partners,  howsoever  acquired;  or  'universorum  quae 
ex  quaestu  veniunt,'  relating  only  to  profits  made  in 
business  deahngs  generally;  or  ' negotiationis  alicuius,' 
relating  only  to  the  profits  of  a  particular  undertaking  ^ 

The  contract  must  be  in  writing,  according  to  French 
law,  if  relating  to  a  value  greater  than  150  fr.,  according 
to  the  English  law  as  to  contracts  generally,  if  it  is  not 
to  be  performed  within  the  year.  An  agreement  that  one 
partner  is  to  have  all  the  profits,  though  the  other  is  to 
share  in  the  losses,  called  in  Roman  law  '  leonina  societas,' 
is  void*.  A  partnership  may  of  course  be  for  life  or  for 
a  definite  time. 

It  is  terminated  by  mutual  consent,  or,  if  formed  for 
no  definite  period,  by  the  retirement  of  one  partner,  even 

•  Art.  1832.  *  §  I-   Companies  are  afterwards  excepted. 
'  Dig.  xvii.  2.  5;  cf.  Code  Civil,  arts.  1835-42. 

*  Dig.  xvii.  29.  2. 


THE   CONTRACT   OF   PARTNERSHIP.  295 

against  the  wish  of  the  others,  by  efflux  of  the  time  for   chap.  xii. 

which  it  was  formed,  by  the  death  or  bankruptcy  of  any 

of  the  partners,  and  by  some  other  causes  \    In  derogation 

of  the  ordinary  rules  as  to  survivorship  in  joint  tenancy, 

EngUsh  law  recognises  that  in  partnership  matters  'ius 

accrescendi    inter    mercatores    locum    non    habet.'      Each 

partner  is  liable  to  account  to  the  others  and  is  responsible 

for  careful  management.    On    the  other   hand,  he   has   a 

right  of  '  contribution,' '  regress,'  against  the  other  partners, 

to  be  indemnified  for  liabilities  incurred  for  their  common 

advantage. 

A  classification  of  trading  partnerships  which  is  due  toClassifica- 
the  French  Code  of  Commerce  divides  them  into  '  societes  en  partner- 
nom  collectif,'  i.  e.  carrying  on  business  under  the  name  of  ^'"P^- 
a  firm,  with  unlimited  liability:  'societes  en  commandite,' 
in  which,  besides  the  ostensible  and  fully  responsible 
partners,  there  are  others  whose  liability  is  limited  to 
the  money  which  they  have  placed  in  the  concern;  and 
'  societes  anonymes,'  which  bear  a  name  indicating  merely 
the  nature  of  the  undertaking,  can  be  formed  only  mth 
the  sanction  of  the  Government,  and  are  wholly  carried  on 
by  means  of  a  capital  divided  into  equal  shares,  'actions,' 
beyond  the  amount  of  which  the  shareholders  incur  no 
risk.  They  are,  in  effect,  companies  with  limited  liability  ^. 
Different  views  are  taken  of  the "  question  whether  an 
executory  contract  of  partnership  should  be  enforced  by 
law;   whether,  that  is   to  say,  any  one  should  be  obUged 


*  Dig.  xvii.  2.  63. 

*  Code  de  Commerce,  art.  19;  cf.  Handelsgesetzbuch,  arts.  15,  &c.  The 
German  law  of  1892  permits  the  estabUshment  of  partnerships  in  which 
the  liability  of  all  the  partners  is  limited,  and  the  partners  have  the 
novel  power  of  calling  up  additional  contributions,  not  for  the  satis- 
faction of  creditors,  but  to  increase  working  capital.  See  L.  Q.  R.  ix. 
p.  62.  As  to  Companies,  v.  infra.  Chapter  xiv.  The  provisions  of  28  &  29 
Vict.  c.  86  (see  now  53  &  54  Vict.  c.  39),  intended  to  introduce  into 
England  something  like  a  partnership  en  commandite,  seem  to  have 
remained  a  dead  letter.  See  Pollock's  Essays  in  Jurisprudence  and 
Ethics,  p.  100. 


296       PRIVATE   LAW:    RIGHTS   'IN    PERSONAM.' 

CHAP.  xii.   to  become  a  partner  against  his  will,  or  mulcted  in  damages 
for  refusing  to  become  one. 


For 

negative 

service. 


V.  Contracts  for  negative  services,  in  which  one  party 
promises  to  abstain  from  certain  acts,  are  somewhat  grudg- 
ingly recognised  by  law,  as  interfering  with  freedom.  So, 
although  English  law  will  recognise  as  valid  an  agreement 
not  to  marry  a  specified  person,  it  will  refuse  to  enforce 
a  general  covenant  not  to  marry,  as  being  against  public 
policy.  A  promise  whereby  a  man  is  restrained  altogether, 
or  within  very  wide  limits,  from  carrying  on  his  profession 
or  trade  has  been  held  to  be  similarly  void;  but  unless 
the  restriction  is  unreasonable,  or  against  public  policy  \ 
the  tendency  of  recent  cases  is  to  uphold  it  ^ 


Aleatory  vi.  An  aleatory,  or  wagering,  contract  is  defined  in  the 

French  Code  as  '  one  the  effects  of  which,  as  to  both  profit 
and  loss,  whether  for  all  the  parties,  or  for  one  or  several 
of  them,  depend  on  an  uncertain  event  l'  This  description 
includes  agreements  of  very  different  kinds. 

Wagers.  i.  Bets  and  stakes   are,  as  a  rule,  not   enforced   under 

modern  systems  of  law  \    Not  long  since  an  action  could 


'  Cf.  supra,  p.  268. 

^  See  Rousillon  v.  Rousillon,  14 Ch.  D.  35;  Davies  v.  Davies,  36 Ch.  D. 
359;  Maxim-Nordenfeldt  Gun  Co.  v.  Nordenfeldt  [1893]  i  Ch.  630,  [1894] 
A.  C.  535.  For  a  table  of  cases  in  which  this  has  been  done,  see  Pollock, 
Contract,  ed.  vii.  p.  363. 

*  Art.  1964.  This  definition  is  criticised  by  Sir  W.  R.  Anson  as  being 
wide  enough  to  include  any  agreement  in  which  the  profit  and  loss  of 
one  party  depended  on  a  contingency.  He  observes  that,  to  constitute 
a  wager, '  the  parties  must  contemplate  the  determination  of  the  uncertain 
event  as  the  sole  condition  of  their  contract.  One  may  thus  distin- 
guish a  genuine  wager  from  a  conditional  promise  or  guarantee.'  Contract, 
ed.  X.  p.  202. 

*  Cf.  German  Civil  Code,  762.  Bets  on  games  were  generally  forbidden 
by  Roman  law,  subject  to  certain  exceptions  ('  praeterquam  si  quis  certet 
hasta,  vel  pilo  iaciendo,  vel  currendo,  saliendo,  luctando,  pugnando,  quod 
virtutis  causa  fiat.'  Dig.  xi.  5.  2),  reduced  by  Justinian  to  five  in  number. 
Money  paid  by  the  loser  could  be  recovered  by  him,  or  should  he  decline 
to  sue  for  it,  by  the  public  authorities  of  the  district.   Cod.  iii.  43. 


ALEATORY    CONTRACTS.  297 

have    been    maintained    in  England    upon    a  wager,  not   chap.  xn. 

contrary  to  public  policy,  or  immoral,  or  offensive  to  the 

feelings  or  character   of  third  parties;    but  it  has  been 

provided    by  a    statute    of    the    present    reign  that  'all 

contracts  or  agreements  whether  by  parol  or  in  writing, 

by  way  of  gaming  or  wagering,  shall  be  null  and  void  \' 

This  enactment  is  however  expressly  declared  not  to  apply 

to  any  subscription  or  contribution  for  any  plates,  prizes, 

or  sum  of  money  to  be  awarded  to  the  winner  of  any 

lawful    game,  sport,   pastime,  or    exercise.     The    French 

Code,  in  refusing  any  action  for  a  gaming  debt  or  the 

payment  of  a  bet,  makes  a  similar  exception  in  favour  of 

'les  jeux  propres  a  exercer  au  fait  des  armes,  les  courses 

a  pied  ou  a  cheval,  les  courses  de  chariot,  le  jeu  de  paume, 

et  autres  jeux  de  mSme  nature  qui  tiennent  a  I'adresse 

et  a  I'exercice  du  corps  ^.'    Some  gaming  contracts  have 

been  declared  not  only  void    but  also  illegal  ^  and  the 

difference  in  the  character  of  the  contract  leads  to  different 

rules  as  to  the  recovery  of  money  lent  to  enable  it  to  be 

made,  or  paid  mistakenly  in  pursuance  of  it. 

2.  Lotteries  are  illegal  in  England  *.  Lotteries. 

3.  Wagering  contracts  on  the  price  of  stock  were  made  stock- 
void  and  penal  by  an  Act,  now  repealed,  passed  '  to  prevent  ^^    ^"^' 
the  infamous  practice  of  stock- jobbing  ^.' 

4.  An  agreement  to  pay  an  annuity  so  long  as  a  given  Annuities, 
individual  shall  Uve,  '  rente  viagere,'  whether  the  indivi- 
dual in  question  is  a  party  to  the  contract  or  not,  will 
generally  be  supported.  It  will  be  void,  under  the  French 

Code,  if  the  person  on  whose  life  it  depends  is  ill  at  the 


'  8  &  9  Vict.  c.  109.  s.  18.  By  55  Vict.  c.  9,  pajrments  made  by  an 
agent  in  pursuance  of  such  contracts  cannot  be  recovered  from  his 
principal. 

'  Code  Civil,  arts.  1965-7.  The  German  Civil  Code,  762,  avoids 
absolutely. 

'  E.  g.  by  5  &  6  W.  IV.  c.  41. 

*  By  10  &  II  W.  III.  and  later  Acts. 

"  7  Geo.  II.  c  8,  repealed  by  23  Vict.  c.  28. 


298      PRIVATE   LAW:     RIGHTS   'IN    PERSONAM.' 


CHAP.    XII. 


Nautica 
pecunia. 


Insurance. 


Marine. 


Fire  and 
Life. 


time  when  it  is  made  and  dies  of  the  same  ilhiess  within 
twenty  days  \ 

5.  Loans  to  a  shipowner,  to  be  repaid  only  in  case  of  the 
successful  termination  of  a  voyage.  Of  such  a  nature  are 
the  contracts  known  as  ' traiectitia,'  or  'nautica  pecunia,' 
'pret  a  la  grosse,'  'bottomry,'  and  'respondentia.'  They 
have  always  been  allowed  to  be  effected,  by  way  of 
compensation  for  the  risk  run  by  the  lender,  at  an  extra- 
ordinary rate  of  interest,  '  nauticum  f oenus.' 

6.  Insurance  is  a  contract  by  which  one  party,  in  con- 
sideration of  a  premium,  engages  to  indemnify  another 
against  a  contingent  loss,  by  making  him  a  payment  in 
compensation  if,  or  when,  the  event  shall  happen  by  which 
the  loss  is  to  accrue. 

'  Marine  insurance,'  according  to  an  EngUsh  statute,  is  of 
immemorial  usage, '  by  means  whereof  it  cometh  to  pass, 
upon  the  loss  or  perishing  of  any  ship,  there  followeth 
not  the  undoing  of  any  man,  but  the  loss  lighteth  rather 
easily  upon  many  than  heavily  upon  few^'  The  insurers 
are  known  as  'underwriters,'  because  each  of  them  signs 
the  contract,  or  '  policy,'  engaging  to  bear  a  certain  pro- 
portion of  the  whole  indemnity,  which  may  apply  to  the 
ship,  to  the  freight  which  it  is  to  earn,  or  to  anything  on 
board.  They  are  usually  liable  in  case  of  the  loss,  either 
total  or  partial,  of  the  ship  or  cargo,  by  any  peril  of  the 
sea  during  a  given  voyage,  to  the  extent  of  the  owner's 
loss,  and  also  for  any  payments  he  may  have  been  com- 
pelled to  make  on  account  of  'salvage,'  or  by  way  of 
'  general  average,' '  avaries  grosses.' 

Loss  occasioned  by  fire  on  land  is  indemnified  against 
by  '  fire  insurance ' ;  and  damage  of  other  kinds,  e.  g.  to 
crops  by  bad  weather  or  to  glass  by  hailstones,  recently 
also  against  certain  liabilities  of  employers,  by  analogous 
contracts.    '  Life  insurance '  has  similarly  been  imitated  of 


'  Ck)de  Civil,  art.  1968. 


43  Eliz.  c.  12- 


ACCESSORY   CONTRACTS.  299 

late  years  by  contracts  for  compensation  in  case  of  illness  chap,  xil 
or  accident.  It  has  been  thought  proper  to  restrict  by 
legislation  the  right  of  insuring  without  any  interest  in 
the  risk  insured  against  S  but  a  life  insurance  differs  from 
insurances  of  other  kinds  in  the  amount  which  can  be 
recovered  under  it.  Policies  of  insurance  against  fire  or 
marine  risk  are  contracts  to  recoup  the  loss  which  parties 
may  sustain  from  particular  causes.  When  such  a  loss  is 
made  good  aliunde^  the  companies  are  not  hable  for  a  loss 
which  no  longer  exists;  but  in  a  life  policy  there  is  no 
such  provision". 

II.  Many  contracts  are  entered  into  for  the  purpose  of  Accessory 
creating  a  right  which  is  to  be  merely  ancillary  to  another 
right.  Of  such  contracts,  which  may  properly  be  described 
as '  accessory,' the  more  important  species  are — i.  Surety- 
ship; 2.  Indemnity;  3.  Pledge;  4-  Warranty;  5.  Ratification; 
6.  Account  stated ;  7.  For  further  assurance. 

I.  Suretyship,  or  guarantee,  '  intercessio,'  in  French  Surety- 
'  caution,'  is  a  collateral  engagement  to  answer  for  the 
debt,  default,  or  miscarriage  of  another.  Although  thus 
entirely  subsidiary  in  its  nature,  it  is  sometimes  legally 
binding  when  the  obligation  to  which  it  is  subsidiary  is 
merely  'natural,'  in  other  words  is  incapable  of  being 
judicially  enforced  ^  A  promise  made  by  a  slave  to  his 
master,  though  it  gave  rise  only  to  a  natural  obligation, 
would  nevertheless,  in  Roman  law,  support  a  '  fideiussio ' ; 
and  in  French,  though  not  in  English  law,  a  guarantee  of 
a  promise  made  by  a  minor,  by  which  he  is  not  himself 
bound,  may  be  enforced  by  action  *.  The  contract  is  under 
some  systems  a  formal  one.  In  Roman  law  it  was  made 
by  stipulation,  and  in  England,  by  the  Statute  of  Frauds, 
must  be  in  writing.  It  is  a  maxim  that  the  liability  of 

*  E.  g.  19  Geo.  II.  c.  37;    14  Geo.  III.  c.  48. 

*  Darrell  v.  Tibbitts,  5  Q.  B.  D.  560. 

*  Supra,  p.  236;  infra,  pp.  310  n.,  344  n.         *  Code  Civil,  art.  2012. 


300      PRIVATE   LAW:    RIGHTS   'IN    PERSONAM.' 

CHAP.  XII.  the  surety  may  be  less  than,  but  cannot  exceed,  that  of  the 
principal  debtor.  Under  some  systems  it  passes,  under 
others  it  does  not  pass,  to  his  heirs.  A  contract  of  surety- 
ship raises  three  classes  of  questions.  As  between  the 
surety  and  the  creditor,  it  may  be  asked,  what  acts  on 
the  part  of  the  creditor,  e.  g.  giving  time  to  the  debtor, 
will  discharge  the  surety  from  his  liability;  whether  the 
surety  may  insist  on  the  creditor  bringing  his  action  in 
the  first  instance  against  the  principal  debtor, '  beneficium 
ordinis '  ^ ;  whether  each  of  several  sureties  is  liable  for 
the  whole  debt,  'in  solidum,'  or  only  for  a  proportionate 
share  of  it,  'beneficium  divisionis.'  As  between  a  surety 
and  the  defaulting  debtor,  it  may  be  questioned  how  far 
the  former  is  entitled  to  the  remedies  of  the  creditor 
against  the  latter, '  beneficium  cedendarum  actionum,'  or  to 
*  regress  '  against  him  on  an  implied  contract  of  indemnity. 
As  between  several  sureties,  it  is  necessary  to  determine  how 
far  any  one  of  them  who  discharges  the  debt  for  which 
all  are  jointly  liable  is  entitled  to 'contribution' from  the 
others  ^  The  liability  of  a  surety  to  the  creditor  termmates 
by  a  discharge  either  of  the  principal  obligation  by  the 
debtor,  or  of  the  guarantee  by  one  of  his  co-sureties. 
Indem-  2.  A  promise  to  indemnify,  or  save  harmless,  the  promisee 

"*  ^*  from  the  consequences  of  acts  done  by  him  at  the  instance 

of  the  promisor,  may  be  express  or  implied.  It  is  implied 
not  only  between  principal  and  surety,  and,  in  some  systems, 
between  one  surety  and  his  co-sureties,  but  also  in  the 
contract  of  agency.  The  principal  promises  by  implication 
to  indemnify  his  agent,  except  in  the  performance  of  illegal 
acts,  as  to  which  it  is  a  maxim  that '  there  is  no  contribu- 
tion between  wrong-doers.' 
ledge.  3-  The  contract  of  Pledge,  besides   giving  rise,  as  we 


•  Introduced  by  Justinian,  Nov.  iv.  i.    It  is  unknown  to  English  law. 
Ranelagh  v.  Hayes,  i  Vernon,  189;  Smith  v.  Freyler,  47  Am.  Rep.  358. 

*  The  English  doctrine  of  contribution  between  co-sureties  was  un- 
known in  Roman  law. 


ACCESSORY   CONTRACTS.  301. 

have  seen,  to  a  peculiar  species  of  right  '  in  rem  V  gives   chap.  xu. 

rise  also  to  rights  'in  personam.'    The  debtor  is  entitled 

not  only  to  have  the  thing  pledged  re-delivered  to  hinr, 

on  the  due  payment  of    his    debt,  but  also  to  have  it 

preserved  with  reasonable  care  in  the  meantime.    Whether 

it  may  be  used  by  the  creditor  will  depend  on  the  terms 

of  the  contract.     The  creditor,  on  the  other  hand,  can 

claim  to  be  indemnified    against    any  expense  to  which 

he  may  be  put  in  taking  care  of  the  pledge. 

4.  A  Warranty  has  been  defined  as  'an  express  or  Warranty, 
implied  statement  of  something  which  the  party  under- 
takes shall  be  part  of  the  contract;  and,  though  part 
of  the  contract,  collateral  to  the  express  object  of  it  ^.'  On 
the  one  hand,  it  is  a  term  added  to  a  contract,  and  must 
therefore  be  distinguished  from  mere  representations  made 
with  reference  to  the  matter  of  the  contract,  but  forming 
no  part  of  the  agreement  of  the  parties.  On  the  other 
hand,  it  is  not  so  intimately  connected  with  the  contract 
as  to  be  a  '  condition  precedent '  to  the  contract  coming 
into  operation.  It  may  be  broken  and  give  rise  to  a  right 
of  action  for  damages,  without  producing  any  effect  upon 
the  contract  to  which  it  is  annexed  ^ 

A  warranty  refers  most  usually  to  title  or  to  quality, 
and,  though  most  frequently  accessory  to  a  contract  of  sale, 
is  also  added  to  other  contracts,  for  instance  to  a  letting 
for  hire  *. 


*  Supra,  p.  222. 

^  Lord  Abinger,  C.  B.,  in  Chanter  v.  Hopkins,  4  M.  &  W.  404.  Of. 
Behn  v.  Bumess  (i860),  3  B.  &  S.  751.  Sir  W.  R.  Anson,  Law  of  Con- 
tract, ed.  X.  p.  323  n.,  in  commenting  on  this  case,  distinguishes  no  less 
than  six  senses  in  which  this  term  is  employed  by  English  lawyers. 

^  For  the  purpose  of  the  Sale  of  Goods  Act,  1893,  a  'warranty'  is 
defined,  s.  62,  as  'an  agreement  with  reference  to  goods  which  are  the 
subject  of  a  contract  sale,  but  collateral  to  the  main  purpose  of  such 
contract,  the  breach  of  which  gives  rise  to  a  claim  for  damages,  but  not 
to  a  right  to  reject  the  goods  and  treat  the  contract  as  repudiated.' 

*  Cf.  supra,  p.  231,  as  to  an  implied  warranty  of  authority  as  an 
agent. 


302       PRIVATE    LAW  :    RIGHTS    '  IN    PERSONAM.' 


CHAP.    XII. 

Ratifica- 
tion. 


Account 
stated. 


For 

further 

assurance. 


5.  Ratification  is  the  adoption  by  a  person  as  binding 
upon  himself  of  an  act  previously  done  by  him,  but  not 
so  as  to  be  productive  of  a  subsisting  legal  obligation,  or 
done  by  a  stranger  having  at  the  time  no  authority  to  act 
as  his  agent. 

The  ratification  of  a  contract  barred  by  the  statutes  of 
limitation  must  in  England  be  in  writing,  signed  by  the 
original  contractor,  or  his  agent  duly  authorised  \  A 
recent  Act  of  Parliament  has  made  of  no  effect  any  promise 
made  by  a  person  of  full  age  to  pay  any  debt  contracted 
by  him  during  infancy,  or  any  ratification  made  after  full 
age  of  any  promise  or  contract  made  during  infancy  ^. 

The  contract  of  a  stranger  can  be  adopted  by  a  course 
of  action,  as  well  as  by  words  or  writmg,  but  can  be 
adopted  only  by  one  on  whose  behalf  it  was  made.  The 
agent  must  have  intended  to  act  for  the  person  who  by 
subsequent  ratification  becomes  his  principal.  '  Ratihabitio,' 
says  Juhan,  'constituet  tuum  negotium  quod  ab  initio 
tuum  non  erat,  sed  tua  contemplatione  gestum'.' 

6.  Akin  to  ratification  are  the  '  constitutum '  of  Roman 
law,  and  the  promise  of  repayment  which  English  law 
impUes  on  an  '  account  stated ' ;  as  are  also  I.  O.  U.'s  and 
promissory  notes.  The  contract  in  all  these  cases  is  super- 
added to  a  pre-existing  contract  by  way  of  strengthening 
it ;  so  that  the  creditor  may  rely  either  upon  his  original 
claim,  or  upon  the  new  claim  thus  created,  but  can  in  no 
way  receive  more  than  the  sum  originally  due.  There 
are  cases  in  which  the  creditor  can  recover  upon  the  new 
contract,  although  the  old  one  was  not  legally  enforceable  \ 

7.  Conveyances  of  land,  and  other  instruments,  fre- 
quently contain  covenants  '  for  further  assurance,'  and  the 
like,  which  are  strictly  accessory  to  the  principal  contract 
in  which  they  are  inserted. 


'  9  Geo.  IV.  c.  14,  8.  1;   19  &  20  Vict.  c.  97.  s.  13. 

'  37  &  38  Vict.  c.  62. 

»  Dig.  iii.  5.  6.  9.  «  See  Chitty,  Contracts,  p.  589. 


TRANSFER.  303 

We  have  seen   that  a  number  of  rights  *in  rem'   are   chap.  xn. 
untransferable,  and  this  is  still  more  usually  the  case  with  Transfer 
rights  '  in  personam.'    The  transfer  of  these,  when  it  takes 
place  at  all,  takes  place  either  '  by  act  of  law '  or  '  by  act 
of  party  V 

i.  Certain  sets  of  circumstances  are  invested  by  law  by  act  of 
with  the  attribute  of  effecting  a  transfer  of  rights  '  in  per- 
sonam,' and  sometimes  also  of  the  corresponding  liabilities, 
to  new  persons  of  inherence  and  of  incidence  respectively. 
So  in  English  law,  most  of  the  rights  and  liabilities  of 
a  woman  passed  on  marriage  till  lately  to  her  husband; 
those  of  a  deceased  person  pass  to  his  heir,  executor,  or 
administrator,  or  to  a  judicial  functionary^;  those  of  a 
bankrupt  to  his  trustee  in  bankruptcy.  On  the  death  of 
one  of  several  joint  contractors  his  rights  and  Uabilities 
pass,  not  to  his  personal  representative,  but  to  the  surviving 
contractors.  It  must  however  be  remarked  that  rights 
and  liabilities  arising  from  family  relations,  or  which  are 
closely  connected  with  the  personal  characteristics  of  either 
party,  such  as  those  arising  out  of  a  promise  to  marry,  or 
to  use  surgical  skill,  or  to  paint  a  picture,  are  not  thus 
transferred  'by  act  of  law^' 

ii.  The  transfer  of  a  '  right  in  personam '  '  by  act  of  by  act  of 
party,'  is  of  still  more  restricted  appUcation.  Its  possibility  P^'"*^- 
is  indeed  flatly  denied  by  the  older  theories  of  law. 
'Obligations,'  says  Gains,  '  however  contracted,  admit  of 
nothing  of  the  sort  * ' ;  and  it  was  an  axiom  of  the  English 
common  law  that  'choses  in  action  are  not  assignable.' 
The  practical  inconveniences  resulting  from  this  rule  led 
to  its  gradual  relaxation.  It  is  no  doubt  possible  by 
consent  of  all  concerned  to  substitute  a  new  debtor  or 


>  Supra,  p.  153. 

'  21  &  22  Vict.  c.  95.  s.  19.  As  to  the  effect  of  60  &  61  Vict.  c.  65,  'An 
Act  to  establish  a  Real  Representative,  &c.,'  supra,  pp.  156,  158  n. 
»  Wills  V.  Murray,  4  Ex.  866.  *  Inst.  ii.  38. 


304      PRIVATE    LAW:    RIGHTS    'IN    PERSONAM.' 

CHAP.  XII.  new  creditor  in  place  of  the  person  of  inherence  or  of 
incidence  as  the  case  may  be.  This  is  however  a  cumbrous 
process,  and  is  obviously  not  an  assignment,  but  an  ex- 
tinction of  the  original  right,  followed  by  a  contract 
creating  a  new  right  in  substitution  for  the  old  one.  It 
is  an  example  of  what  the  Romans  called  '  novatio  *.'  The 
first  step  towards  the  assignment  of  an  obligation  was 
taken  by  allowing  a  stranger  to  it  to  bring  an  action 
upon  it  in  the  name  of  the  party  entitled  under  it,  and 
to  retain  the  proceeds  for  himself.  This  was  the  process 
known  in  Roman  law  as  '  cessio  actionum.'  The  assignor 
was  held  to  be  a  trustee  for  the  assignee,  or  to  have 
constituted  the  assignee  his  agent  for  the  purpose  of 
bringing  actions.  The  English  Court  of  Chancery,  follow- 
ing the  later  Roman  law^  went  so  far  as  to  allow  the 
assignee  to  sue  in  his  own  name,  provided  that  he  had 
given  consideration  for  the  assignment,  and  that  the  debtor 
had  had  notice  of  it,  subject  however  to  all  defences  which 
would  be  good  against  the  assignor '.  Under  the  '  Supreme 
Court  of  Judicature  Act,  1873,'  '  Any  absolute  assignment, 
by  writing  under  the  hand  of  the  assignor,  not  purporting 
to  be  by  way  of  charge  only,  of  any  debt  or  other  legal 
chose  in  action,  of  which  express  notice  in  writing  shall 
have  been  given  to  the  debtor,  trustee,  or  other  person 
from  whom  the  assignor  would  have  been  entitled  to 
receive  such  claim  or  debt  or  chose  in  action,  shall  be, 
and  be  deemed  to  have  been,  effectual  in  law,  subject  to 
all  equities  which  would  have  been  entitled  to  priority 
over  the  right  of  the  assignee  if  this  act  had  not  passed, 
to  pass  and  transfer  the  legal  right  to  such  debt  or  chose 


•  'Novatio  est  prions  debiti  in  aliam  obligationem,  vel  civilem  vel 
naturalem,  transfusio  atque  translatio,  hoc  est  cum  ex  praecedenti 
causa  ita  nova  constituatur,  ut  prior  perimatur.'  Dig.  xlvi.  2.  i;  of. 
Inst.  iii.  29.  3.     Cf.  German  Civil  Code,  414-419. 

'  Cod.  iv.  39.  7. 

'  See  Lord  Carteret  v.  Paschal,  3  P.  Wms.  199. 


TRANSFER.  3^5 

in  action  from  the  date  of  such  notice  \'    Similar  provisions   chap,  xit 

are  contained  in  several  continental  codes  ^,  and  contractual 

rights  of  certain  special  kinds  have  been  made  assignable 

by  statute,  such  as,  for  instance,  rights  arising  on  policies 

of   marine  and    life    insurance,   bail  bonds,  and   bills   of 

lading'.    The    assignee,  be  it  observed,  in    all    the  cases 

hitherto  mentioned   takes   subject   to  all  defences  which 

were  available  against  the  original  creditor,  and  sometimes 

subject  to  other  drawbacks.    Only  one  class  of  obligations  Negotiable 

instrTi" 
can  be  said  to  be  fully  assignable.     It  is  first  heard  of  in  ments. 

the  fourteenth  century,  and  is   the   product  of  the  wide 

extension  of  modern  commercial  transactions.    What  are 

called  'negotiable  instruments,'  or  'paper  to  bearer,'  such 

as  bills  of   exchange,  or  promissory  notes,  do  really  pass 

from  hand   to  hand,  either  by  delivery  or  indorsement, 

giving   to  each  successive  recipient  a  right    against    the 

debtor,  to  which  no  notice  to  the  debtor  is  essential,  and 

which,  if  the  paper  is  held  bona  fide  and   for  value,  is 

unaffected  by  flaws  in  the  title  of  intermediate  assignors*. 

It   has   been  acutely  remarked    that    the  assignability  of 

a  negotiable  instrument  is  due  to  its  being  in  point  of 

fact   a  material  object,  and  so  capable  of  actual  dehvery. 

The  written  document  is  thus,  as  it  were,  the  embodiment 

of  what  would  otherwise   be  an  intangible,  and  therefore 

untransferable,  claim  ^ 

Liabilities  do  not,  as   a  rule,  pass   by  voluntary  assign- 


*  36  &  37  Vict.  c.  66.  s.  25,  6. 

'  E.  g.  in  the  Prussian  Landrecht,  i.  1 1.  ss.  376-444;  Austrian  Code,  as. 
1 394- 1 39 6;  German  Civil  Code,  398-413. 

^  Savigny,  Oblig.  ii.  p.  112,  truly  observes  that  ordinary  shares  in 
companies  are  not  obligations  but  parts  of  ownership,  producing  there- 
fore not  interest  but  dividends.  So  it  has  been  held  by  the  Court  of  Ap- 
peal, diss.  Fry,  L.  J.,  that  shares  before  registration  were  choses  in  action. 
but  afterwards  property,  Colonial  Bank  v.  Whinney,  L.  R.  30  Ch.  D.  261, 
reversed  in  H.  L.,  11  App.  Ca.  426. 

*  On  the  difference  between  '  negotiability '  and  '  assignability,'  see 
Anson,  Law  of  Contract,  ed.  x.  p.  259. 

'  Savigny,  Oblig.  ii.  p.  99.    Cf.  Colonial  Bank  v.  Whinney,  u.  s. 

HOLLAND  X 


306      PRIVATE   LAW:    RIGHTS  'IN    PERSONAM.' 

CHAP.  XII.  ment.  Under  a  contract,  it  is,  for  instance,  said  to  be  only 
reasonable  that  the  creditor  should  continue  to  have  a 
right  to  the  benefit  he  contemplated  from  the  character, 
credit,  or  substance  of  the  person  with  whom  he  contracted. 
It  was  however  a  rule  of  English  common  law  that  certain 
covenants  between  landlord  and  tenant,  which  are  said  to 
touch  the  land,  should  'run  with  the  land,'  so  that  an 
'assignee  of  the  term,'  i.  e.  a  person  to  whom  a  tenant 
transfers  his  lease,  can  not  only  sue,  but  also  be  sued, 
upon  them,  as  if  he  were  the  original  lessee.  Like  rights 
and  liabilities,  in  respect  of  these  covenants,  have  been  by 
statute  made  to  attach  to  the  person  who  succeeds  to  the 
rights  of  the  original  landlord,  or,  as  he  is  called,  'the 
assignee  of  the  reversion'.' 
Extinc-  We  have  already  had  occasion  to  mention  incidentally 

some  of  the  modes  in  which  the  obligations  resulting  from 
particular  contracts  are  dissolved.  It  will  however  be 
necessary  to  consider,  from  a  more  general  point  of  view, 
the  circumstances  which  terminate  rights  'in  personam ^' 
They  may  perhaps  be  classified  under  the  following 
heads :  i.  Performance ;  ii.  Events  excusing  performance ; 
liL  Substitutes  for  performance ;  iv.  Release  of  performance ; 
V.  Non-performance. 

by  per-  i.  Performance  of  the  acts  to  which  the  person  of  in- 

'  cidence  is  obliged  is  the  natural  and  proper  mode  by 
which  he  becomes  loosed  from  the  obligation  of  performing 
them  I 

Performance  by  a  third  person  is  sometimes  permissible ; 
so  a  debt  was  in  Roman  law  extinguished  on  payment  of 


•  32  Hen.  VIII.  c.  34;   44  &  45  Vict.  c.  41.  ss.  10,  11. 

^  '  Solutionis  verbum  pertinet  ad  omnem  liberationem,  quoquo  modo 
factam.'     Dig.  xlvi.  3.  54. 

*  By  performance,  and  by  some  other  facts,  'etiam  accessiones  (i.  e 
sureties)  liberantur.'     Dig.  1.  43. 


EXTINCTION.  307 

the    amount    by  a    stranger,  even  without    the    debtor's   chap.  xn. 
knowledge  \ 

ii.  Events  excusing  performance.  by  events, 

,  excusing 

I.  As  a  general  rule,  at  any  rate  m  English  law,    sub-  perform- 

sequent  impossibility'  is  no  excuse  for  non-performance ^ ; ^"*^' 

but  to  this  there  are  several  exceptions : 

(a)  When  the  act  due  is  intimately  dependent  on  the 
individuality  of  either  party,  the  right,  or  liability,  to  its 
performance  must  necessarily  be  extinguished  by  his  death. 
It  would  be  obviously  absurd  to  make  the  executors  of 
the  Admirable  Crichton  responsible  for  his  non-performance 
of  a  contract  to  marry,  or  those  of  Raphael  for  his  inability 
to  return  to  life  and  finish  the  '  Transfiguration.'  Serious 
illness  may  have  a  similar  effect'. 

(b)  When  the  performance  has  reference  to  a  specific 
thing,  its  destruction,  without  fault  of  the  parties,  puts 
an  end  to  the  right.  So  when  the  proprietors  of  a  place 
of  public  entertainment  had  agreed  to  let  it  on  a  certain 
day,  before  which  it  was  burnt  down,  they  were  held  to  be 
free  from  their  engagement  *. 

(c)  A  failure  in  the  occurrence  of  the  event  with  reference 
to  which  the  contract  was  entered  into  ^ 

(d)  A  change  in  the  law,  or  the  outbreak  of  war  between 
the  countries  of  the  contracting  parties,  may  operate  to 
make  performance  a  '  legal  impossibility.' 

*  Dig.  xlvi.  3.  23;  Inst.  iii.  29  pr.  The  rule  in  English  law  is  said  to 
be  otherwise.    Jones  v.  Broadhurst,  9  C.  B.  1 73. 

'  Paradine  v.  Jane,  ^Heyn,  26,  where  it  was  held  that  'when  a  party, 
by  his  own  contract,  creates  a  duty  or  charge  upon  himself,  he  is  bound 
to  make  it  good,  if  he  may,  notwithstanding  any  accident  or  inevitable 
necessity,  because  he  might  have  provided  against  it  by  his  contract.' 
For  the  rule  in  Roman  law,  see  Inst.  iii.  29.  2.  For  the  American  cases, 
see  F.  C.  Woodward  in  Columbia  L.  R.  i.  p.  529.  Cf.  Germ.  Civ.  Code,  323. 

'  Farrow  v.  Wilson,  L.  R.  4  C.  P.  744;  Robinson  v.  Davidson,  L.  R. 
6  Ex.  269. 

V  Taylor  v.  Caldwell,  3  B.  «fe  S.  826.   Cf.  Dig.  xlvi.  3.  107. 

"  Krell  V.  Henry  [1903]  2  K-  B.  740;  C.  S.  Co-op.  Soc.  v.  Genl.  Steam 
Nav.  Co.,  ib.  756. 

X2 


308      PRIVATE   LAW:    RIGHTS   'IN    PERSONAM.' 

CHAP.  XII.  2.  Under  the  old  Roman  law  all  claims  against  a  'Alius 
familias'  were  cancelled  by  even  a  'minima  capitis  dimi- 
nutio,'  such  as  he  sustained  in  passing  by  adoption  from 
one  family  to  another. 

3.  '  Confusio,'  or  '  merger,'  i.  e.  the  union  in  one  person 
of  the  characters  of  debtor  and  creditor,  is  sometimes  held 
to  extinguish,  sometimes  only  to  suspend,  the  operation  of 
the  right  \ 

4.  Bankrutpcy  has  already  been  mentioned  more  than 
once  as  one  of  the  events  which  give  rise  to  a  universal 
succession  ^  An  order  of  Discharge  has  the  effect  of 
freeing  the  bankrupt,  either  wholly  or  partially,  ac- 
cording to  the  special  provisions  of  the  law  under  which 
he  hves,  from  the  claims  to  which  he  was  previously 
liable. 

5.  The  judicial  rescission  of  a  contract,  or  a  decree  of 
*  restitutio  in  integrum.' 


Substi- 
tutes. 

Tender. 


Com- 
promise. 


iii.  Among  substitutes  for  performance,  the  following 
are  the  more  important. 

1.  'Tender,'  'oblatio,'  of  the  precise  amount  due,  followed 
l>y  '  payment  into  court,'  or  in  Roman  and  French  law  by 
'depositio,'  or  'consignation,'  into  the  hands  of  a  public 
officer,  even  before  any  action  has  been  brought  ^  either 
extinguishes  or  suspends  the  debt. 

2.  '  Compromise,'  '  transactio,'  which  may  be  analysed 
into  a  part  payment,  coupled  with  a  promise  not  to  claim 
the  residue,  can  only  operate  as  a  discharge  of  the  whole 
debt  when  the  subsidiary  promise  is  made  in  such  a  form, 
or  under  such  circumstances,  that  it  might  equally  well 
have  been  a  good  discharge  without  any  part '  payment. 
So  in  an  old  English  case  it  was  resolved  'that  payment 
of  a  lesser  sum  on  the  day,  in  satisfaction  of  a  greater, 


*  Code  Civil,  art.  1300;  Dig.  xvi.  3.  107.  .  ?  Supra,  p.  154. 

'  Cod.  iv.  32.  19,  viii.  43.  9;  Code  Civil,  art.  1257, 


SET-OFF.  309 

cannot    be  a  satisfaction    to    the    plaintiff  for  a  greater   chap.  xir. 
sum.     When  the  whole  sum  is  due,  by  no  intendment 
the    acceptance    of    parcel    can  be  a  satisfaction    to  the 
plaintiff  \' 

3.  It  was   long   debated    but    finally  admitted  by  the  Datio  in 
Roman  lawyers  that  a  'datio  in  solutum,'  or  giving  and 
acceptance  of  something  other  than  the  thing  due,  and  in 
place  of  it,  discharges  the  obligation  ^.     So  in  English  law 

it  is  laid  down  that  if  a  debtor  pays  to  his  creditor 
*a  horse,  or  a  cup  of  silver,  or  any  such  other  thing,  in 
full  satisfaction  of  the  money,  and  the  other  receiveth  it, 
this  is  good  enough,  and  as  strong  as  if  he  had  received 
the  sum  of  money,  though  the  horse  or  the  other  thing 
were  not  of  the  twentieth  part  of  the  value  of  the  sum 
of  money,  because  that  the  other  hath  accepted  it  in  full 
satisfaction  I' 

4.  'Set-off,'  ' compensatio,'  defined  by  Modestinus  asSet-o£f. 
'  debiti  et  crediti  inter  se  contributio  *,'  has  been  sometimes 
regarded  as  rateably  extinguishing  a  claim  'ipso  iure,' 
sometimes  only  as  foundation  for  a  plea,  to  which  a  Court 
may  give  regard  in  awarding  judgment  if  the  claim  be 
sued  upon.  The  French  Code  lays  down  broadly  that  'la 
compensation  s'opere  de  plein  droit,'  even  without  the 
knowledge  of  the  debtors,  and  that  the  two  debts  cancel 
each  other  rateably,  from  the  moment  that  they  co-exist  * ; 

a  view  which  was  only  very  gradually  approached  by  the 
Roman  lawyers*.    The  applicability  of  set-off  has  always 


*  Pinnel's  Case,  5  Rep.  117.  Cf.  Foakes  v.  Beer,  9  App.  Ca.  605;  Good 
V.  Cheeseman,  2  B.  &  Ad.  335.  The  Supreme  Court  of  Mississippi  in  1897 
deliberately  departed  from  Pinnel's  Case,  in  Clayton  v.  Clark,  74  Miss., 
499.  On  the  theory  of '  accord  and  satisfaction,'  the  Author  may  perhaps 
refer  to  his  Essay  on  Composition  Deeds,  Chapters  ii.  and  iii. 

*  Gai.  iii.  168;  Cod.  viii.  43.  16. 
^  Co.  Litt.  212.  a. 

*  Dig.  xvi.  2.  I. 

*  Art.  1290. 

*  Inst.  iv.  6.  30;  Cod.  iv.  31.  14. 


3IO      PRIVATE   LAW:     RIGHTS    'IN    PERSONAM.' 

CHAP.  XII.  been  limited  to  debts  of  a  readily  calculable  kind*,  and 
between  the  parties  in  the  same  rights.  The  doctrine  was 
unknown  to  the  English  common  law,  upon  which  it  was 
grafted  for  the  first  time  by  2  Geo.  II.  c.  22. 

5.  The  substitution  of  a  new  obligation  for  the  old  one 
by  mutual  consent  is  a  species  of  that  mode  of  discharging 
an  obligation  known  to  the  Romans  as  '  novatio.' 


Substi- 
tution. 


Release.  iv.  The  mere  agreement  of  the  parties  to  a  discharge 

of  the  liability  is  not  always  sufficient.  The  principle  of 
Roman  law  was  that  every  contract  should  be  dissolved 
in  the  same  manner  in  which  it  had  been  made.  'Nihil 
tarn  naturale  est  quam  eo  genere  quidque  dissolvere  quo 
colligatum  est,  ideo  verborum  obligatio  verbis  tollitur: 
nudi  consensus  obligatio  contrario  consensu  dissolvitur '.' 
So  an  obligation  arising  out  of  'stipulatio'  could  only  be 
extinguished  by  an  equally  solemn  'acceptilatio,'  a  method 
which  was  at  a  later  period  extended  by  the  ingenuity 
of  the  praetor  Aquilius  to  the  release  of  obUgations  of  all 
sorts '.  In  the  time  of  Gaius  there  were  certain  obligations 
which  could  be  released  only  by  means  of  a  feigned  pay- 
ment accompanied  by  the  ancient  ceremony  of  the  'aes 
et  libra*.'  A  merely  consensual  contract,  if  wholly  un- 
executed, could  be  discharged  by  the  mere  agreement  of 
the  parties,  but  after  part  execution  such  an  agreement 
could  amount  only  to  a  'pactum  de  non  petendo,'  which 
might  be  a  good  plea  to  an  action  upon  the  obligation, 
but  left  the  obligation  itself  still  in  force. 

English  law  requires  that  a  contract  made  under  seal 
should  be  discharged  in  like  manner  ^     The  effect  of  a 


'  A  merely  'natural'  obligation  could  be  set  off  in  Roman  law.   Dig. 
xl.  7.  20.  2.     Cf.  supra,  pp.  236,  299. 

*  Dig.  1.  17.  35. 
Inst.  iii.  29.  2. 
Gai.  iii.  173. 

*  A  contract  which  under  the  Statute  of  Frauds  has  necessarily  been 
made  in  writing  may,  it  seems,  be  rescinded  without  writing,  but  an 


NON-PERFORMANCE.  311 

mere  agreement  to  discharge  a  consensual  contract  depends   chap.  xu. 

upon   the  doctrme  of  'consideration.'    If   such   a  contract 

be  still  executory,  the  mutual  release  from  its  liabilities  is 

a  good  consideration  to   each   party  for  surrendering  his 

rights  under  it.    If  it  has  been  executed  on  one  side,  it  can 

be   discharged  only  by  an  agreement  founded  on   some 

new  consideration,  or  by  a  deed,  which  is  sometimes  said 

to  'import  a  consideration*.'    The  rule  does  not  however 

apply  to    a    discharge    of    promissory  notes   or    bills    of 

exchange,  which  doubtless  owe  their  immunity  from  it  to 

deriving  their  origin  from  the  'law  merchant^.' 

V.  Non-performance  by  one  party  to  a  contract  often  Non-per- 
puts  an  end  to  the  rights  which  he  enjoys  under  it  against 
the  other  party.  And  some  acts  short  of  non-performance 
may  have  the  same  effect.  Thus  if  one  party  by  his  own 
act  disables  himself  from  performance  ^  or  announces  that 
he  has  no  intention  of  performing*,  the  other  side  is  in 
many  cases  entitled  to  treat  what  has  occurred  as  a 
'breach  of  contract  by  anticipation,'  and  the  contract  as 
being  therefore  no  longer  binding.  Since  however  non- 
performance, or  breach,  has  also  the  effect  of  giving  rise 
to  remedial  rights,  its  discussion  may  conveniently  be 
postponed  till  the  next  chapter. 

unwTitten  contract  superseding  it  by  implication  will  be  incapable  of 
proof.   See  Anson,  Contract,  ed.  x.  p.  299. 

'  Supra,  p.  272  n. 

»  Cf.  The  Bills  of  Exchange  Act,  1882,  §  62. 

'  Planch6  v.  Colbum,  8  Bingham,  14. 

*  Hochster  v.  Delatour,  3  E.  &  B.  678;  Frost  v.  Knight,  L.  R.  7  Ex.  1 1 1 ; 
extended  by  Synge  v.  Synge  [1894]  i  Q.  B.  467.    Cf.  L.  Q.  R.  xii.  p.  loi. 


CHAPTER  Xni. 

PRIVATE    LAW  :     REMEDIAL    RIGHTS. 

Primitive  A  BIGHT  which  could  be  violated  with  impunity,  without 

giving  rise  to  any  new  legal  relation  between  the  person 
of  inherence  and  the  person  of  incidence,  would  not  be 
a  legal  right  at  all.  In  an  anarchical  state  of  society 
an  injured  person  takes  such  compensation  as  he  can 
obtain  from  a  wrong-doer,  or,  if  strong  enough,  gets  such 
satisfaction  as  may  be  derived  from  an  act  of  revenge. 
A  political  society,  in  the  first  place,  puts  this  rude  self- 
help  under  stringent  regulation,  and  secondly,  provides  a 
substitute  for  it  in  the  shape  of  judicial  process.  Self-help 
is  indeed  but  an  unsatisfactory  means  of  redress.  Its 
possibility  depends  upon  the  injured  party  being  stronger 
than  the  wrong-doer,  a  state  of  things  which  is  by  no 
means  a  matter  of  course ;  and  the  injured  party  is  made 
judge  in  his  own  cause,  often  at  a  time  when  he  is  least 
likely  to  form  an  impartial  opinion  upon  its  merits.  To 
suppress  private  revenge,  to  erect  Courts  of  Justice,  and 
to  compel  every  one  who  is  wronged  to  look  to  them  for 
compensation,  is  however  a  task  far  beyond  the  strength 


SELF-HELP.  313 

of  a  State  which  is  still  in  process  of  formation.  So  the  chap.  xm. 
heroic  age  of  Greece  was  characterised,  according  to  Grote, 
by  'the  omnipotence  of  private  force,  tempered  and  guided 
by  family  sympathies,  and  the  practical  nullity  of  that 
collective  sovereign  afterwards  called  the  City,  who  in 
historical  Greece  becomes  the  central  and  paramount 
source  of  obligation,  but  who  appears  yet  only  in  the 
background  \' 

It  is  therefore  not  surprising  that,  as  Sir  Henry  Maine  Regulated 
has  put  it,  '  the  Commonwealth  at  first  interfered  through  ^^  '  ^P- 
its  various  organs  rather  to  keep  order  and  see  fair  play 
in  quarrels,  than  took  them,  as  it  now  does  always  and 
everywhere,  into  its  own  hands  ^.'  The  stages  of  social 
improvement  seem  to  be  the  following.  First,  the  un- 
measured, hot-blooded,  and  violent  retaliation  of  the 
injured  party  is  superseded  by  a  mode  of  taking  com- 
pensation, the  nature  and  formalities  of  which  are  to  some 
extent  prescribed  by  custom.  'The  primitive  proceeding,' 
says  the  author  last  quoted,  'was  undoubtedly  the  un- 
ceremonious, unannounced,  attack  of  the  tribe  or  the  man 
stung  by  injury  on  the  tribe  or  the  man  who  had  inflicted 
it.  Any  expedient  by  which  sudden  plunder  or  slaughter 
was  adjourned  or  prevented  was  an  advantage  even  to 
barbarous  society.  Thus  it  was  a  gain  to  mankind  as 
a  whole  when  its  priests  and  leaders  began  to  encourage 
the  seizure  of  property  or  family,  not  for  the  purpose 
of  permanent  appropriation,  but  with  a  view  to  what 
we  should  now  not  hesitate  to  call  extortion  ^'  This  is 
the  stage  at  which  the  seizure  of  pledges  is  so  prominent, 
and  to  it  belongs  also  the  singular  custom  of  *  sitting 
dhcirna^  according  to  which  an  Indian  creditor  fasts  at 
the  door  of  his  debtor  till  his  debt  is  paid.  Next  comes 
the  stage  when  self-help,  although  permitted,  is  supervised 
and  restrained  by  the  political  authority.    Distress  may 

^  History,  ii.  p.  126. 

^  Early  History  of  Institutions,  Le<jt.  U.  ^  lb.,  Lect.  x. 


314 


PRIVATE    LAW:    REMEDIAL    RIGHTS. 


CHAP.   XIII. 


Judicial 
remedies. 


The  opera- 
tion of  law 
as  conserv- 
ing rights; 


by  preven- 
tion, 


by  redress. 


still  be  resorted  to,  but  only  for  certain  purposes,  and 
with  many  safeguards  against  abuse.  Life  and  property 
may  be  protected  by  force,  but  the  force  used  must  not 
be  in  excess  of  the  need.  Nuisances  may  be  '  abated,'  but 
so  as  to  interfere  with  no  man's  rights.  Last  of  all  comes 
the  reign  of  the  law-courts.  Legally  regulated  self-help 
is  not  wholly  superseded,  but,  as  a  rule,  redress  of  wrongs 
must  be  sought  only  from  the  tribunals  of  the  sovereign  \ 

The  object  of  a  developed  system  of  law  is  the  conserva- 
tion, whether  by  means  of  the  tribunals  or  of  permitted 
self-help,  of  the  rights  which  it  recognises  as  existing! 
So  long  as  all  goes  well,  the  action  of  the  law  is  dormant. 
When  the  balance  of  justice  is  disturbed  by  wrong-doing, 
or  even  by  a  threat  of  it,  the  law  intervenes  to  restore, 
as  far  as  possible,  the  status  quo  ante.  'The  judge,'  says 
Aristotle, '  equalises  I'  He  elsewhere  adopts  the  saying  of 
Lycophron  that  the  function  of  law  is  to  guarantee  that 
all  shall  enjoy  their  rights ^  'Hoc  natura  aequum  est,' 
says  Pomponius,  'neminem  cum  alterius  detrimento  fieri 
locupletiorem  ^' 

Sometimes  the  law  intervenes  for  prevention,  as  by  the 
'injunctions'  which  have  long  been  issued  by  the  Court 
of  Chancery' to  forbid  a  threatened  mischief,  and  by  the 
orders  made  by  the  Roman  praetors  in  cases  of  '  novi  operis 
denuntiatio,'  or  '  damnum  infectum  ^' 

The  remedial  interference  of  the  law  is  however  far 
more  frequent  and  important.    When  a  right  is  violated. 


*  Cf.  the  edict  of  Marcus  Aurelius:  '  Optimum  est  ut  si  quas  putes  te 

habere  petitiones,  actionibusexperiaris: Tu  vim  putas  esse  solum 

si  homines  vulnerentur?    Vis  est  et  tunc  quotiens  quis  id  quod  deberi 

sibi  putat  non  per  iudicem  reposcit Quisquis  igitur  probatus  milii 

fuerit  rem  ullam  debitoris  non  ab  ipso  sil)i  traditam  sine  ullo  iudice 
temere  possidere,  eumque  sibi  ius  in  eam  rem  dixisse,  ius  crediti  non 
habebit.'    Dig.  xlviii.  7.  7. 

*  Supra,  p.  75.  '  Eth.  Nic.  v.  7.  3  and  8. 

*  'T.Yfvr\T^s  a\\-fiKois  rwv  SiKaiwv.    Pol.  iii.  9.  8. 

*  Dig.  xii.  6.  14.  •  Dig.  xxxix.  i  and  2. 


LEGAL  REDRESS.  315 

the  law  endeavours  to  prevent  the   person   of  inherence  chap.  xm. 

from  losing,  or  the  person  of  incidence  from  gaining.    A 

new  right  is  therefore  immediately  given  to  the  former,  by 

way  of  compensation  for  his  loss,  and  a  new  corresponding 

duty  is    laid    upon    the    latter,  by  way  of    make-weight 

against  any  advantage  which  he   may  have  derived  from 

his    aggression.     In   the    language  of    the    French  Code: 

'Tout  fait  quelconque  de  I'homme,  qui  cause  a  autrui  un 

dommage,  oblige  celui   par  la  faute  duquel  il  est  arrive 

a  le  reparer '.' 

In  examining  early  systems  of  law  we  seem  to  come 
upon  traces  of  a  time  when  the  State  had  to  take  special 
pains  in  order  to  insure  that  the  new  right  should  be  as 
acceptable  to  its  subjects  as  the  indulgence  of  private 
revenge.  Such  is  the  interpretation  placed  upon  a  pro- 
vision of  the  Twelve  Tables,  that  a  thief,  if  caught  in 
the  act,  was  to  be  scourged  and  delivered  as  a  slave 
to  the  owner  of  the  goods,  whereas  if  not  caught  under 
circumstances  offering  to  the  owner  a  similar  temptation 
to  violence,  he  was  to  be  Uable  only  for  twice  the  value  of 
the  goods.  So  the  object  of  the  early  Teutonic  legislation 
is  well  described  as  having  been,  'to  preserve  the  society 
from  standing  feuds,  but  at  the  same  time  to  accord  such 
full  satisfaction  as  would  induce  the  injured  person  to 
waive  his  acknowledged  right  of  personal  revenge.  The 
German  Codes  begin  by  trying  to  bring  about  the 
acceptance  of  a  fixed  pecuniary  composition  as  a  constant 
voluntary  custom,  and  proceed  ultunately  to  enforce  it 
as  a  peremptory  necessity:  the  idea  of  society  is  at  first 
altogether  subordinate,  and  its  infiuence  passes  only  by 
slow  degrees  from  amicable  arbitration  into  imperative 
control  ^.' 


»  Art.  1382. 

*  Grote,  History,  ii.  p.  1 28.  A  cursory  inspection  of  the '  Leges  Barbaro- 
nim '  will  show  how  large  a  space  in  them  is  occupied  by  the  topic  of 
'  Compositio.' 


3i6 


PRIVATE   LAW:    REMEDIAL   RIGHTS. 


CHAP.   XIII. 

Self-help. 


Right  of 
action 


for  resti- 
tution, 


The  new  right  may  thus  be  realisable  by  the  regulated 
self-help  of  the  injured  person  of  inherence  himself,  as 
when  he  is  allowed  to  push  a  trespasser  out  of  his  field, 
or  to  pull  down  a  wall  which  has  been  built  across  his 
path.  More  commonly  it  is  realisable  only  with  the  aid 
of  the  law-courts,  in  which  case  it  is  known  as  a  '  right  of 
action,'  'ius  persequendi  iudicio  quod  sibi  debetur\'  The 
right,  however  realisable,  we  call '  remedial,'  as  opposed  to 
the  right  from  a  violation  of  which  it  arises,  and  which 
we  call '  antecedent  ^'  Its  object  may  be  either  restitution 
or  compensation  ^  In  the  former  case,  the  aim  of  the  law 
is  to  cancel,  so  far  as  possible,  the  wrongful  act.  It  allows 
the  injured  party  to  remove  a  building  which  obstructs 
his  window-light,  it  decrees  the  '  restitutio  in  integrum '  of 
a  minor  who  has  entered  into  a  disadvantageous  engagement, 
it  calls  for  and  destroys  a  contract  which  is  tainted  with 
fraud,  it  orders  the  return  of  an  object  of  which  the  person 
of  inherence  has  wrongly  been  deprived,  or  it  enforces, 
if  need  be  by  imprisonment,  the  'specific  performance'  of 
a  contract  which  the  person  of  incidence  is  endeavouring 
to  repudiate,  a  remedy  which,  though  familiar  to  English 
Equity  *  and  to  German  law,  ancient  and  modern,  is  opposed 


*  So  Theophilus  speaks  of  Obligations  as  the  mothers  of  Actions: 
MT/Tcpei  r&v  ayaoyiiv  at  ivoxai-      Inst.  iii.   13. 

'  Supra,  pp.  141,  161.  'Is  qui  actionem  habet  ad  rem  persequendam 
ipsam  rem  habere  videtur,'  says  Paulus,  Dig.  1.  15.  Pomponius,  more 
truly,  'minus  est  actionem  habere  quam  rem.'     Dig.  I.  204. 

'  '  Les  actions  sont  des  droits  particuliers  qui  naissent  de  la  violation 
des  autres  droits,  et  qui  tendent,  soit  k  faire  cesser  cette  violation,  soit 
k  en  faire  r^parer  les  effets.'  Dalloz,  s.  v.,  No.  6g.  On  the  term  'cause 
of  action,'  see  Cooke  v.  Gill,  L.  R.  8  C.  P.  107,  and  Vaughan  v.  Weldon, 
L.  R.  10  C.  P.  47.  It  has  been  held  by  the  Court  of  Appeal  that  'two 
actions  may  be  brought  in  respect  of  the  same  facts,  when  those  facts 
give  rise  to  two  distinct  causes  of  action,'  per  Brett,  M.  R.,  and  Bowen, 
L.  J.,  diss.  Coleridge,  L.  C.  J.    Brunsden  v.  Humphrey,  14  Q.  B.  D.  141. 

*  The  defaulter  is  directed  to  do  the  very  thing  which  he  contracted  to 
do,  and,  if  disobedient,  is  committed  to  prison  for  contempt  of  Court. 
Sir  Edward  Fry  has  shown  that  the  Courts  Christian  anticipated  the 
Court  of  Chancery  in  specifically  enforcing  the  performance  of  those 


RIGHTS    OF  ACTION.  317 

to  the  principles  of  Roman  law  and  of  the  systems  derived  chap.  xm. 
from  it  \     In  the  latter,  which  is  also  the  more  usual,  for  com- 
case,  it  gives  to  the  sufferer  a  right  to  be  compensated  P^°^^*^°"" 
in  damages  for  a  wrong  which  cannot  be  undone. 


contracts,  at  least,  in  which  there  was  an  oath  or  'fidei  interpositio,' 
L.  Q.  R.  V.  p.  235 ,  and  Specific  Performance,  ed.  iii.  p.  8.  He  thinks,  ib.  p.  14, 
that  the  remedy  may  have '  leaked  through  from  the  canon  to  the  manorial 
law,  where  a  Bishop  was  lord  of  a  manor,'  citing  a  case,  temp.  Ed.  II.,  in 
a  manorial  court  of  the  Bishop  of  Ely,  from  'The  Court  Baron'  (Selden 
Society),  p.  115.  Mr.  W.  F.  Webster  kindly  calls  my  attention  to  the 
extent  to  which  specific  performance  of  promises  to  marry  was  enforced 
by  Roman-Dutch  law,  at  the  Cape  till  1838,  and  in  the  Transvaal  till 
1 871;  referring  to  Voet,  Comm.  ad  Pand.  lib.  xxiii.  tit.  i.  §  12,  to  Van 
Leeuwen's  Commentaries,  Bk.  iv.  25.  §  i,  and  to  the  note  in  Kotze's 
translation  (1887),  vol.  ii.  p.  210. 

'  According  to  the  view  prevalent  in  France,  'Nemo  potest  praecise 
cogi  ad  factum.'  See  Sir  Edward  Fry's  Treatise  on  Specific  Performance, 
ed.  iii.  p.  4,  and  the  opinion  of  M.  Renault,  ib.  p.  714. 

The  doctrine  of  Pothier,  Obhg.  §  157,  'C'est  en  cette  obligation  de 
dommages  et  int^rets  que  se  resolvent  toutes  les  obligations  de  f aire  quelque 
chose,' was  adopted  in  art.  ii42of  the  Code  Civil, 'Toute  obligation  def  aire 
ou  de  ne  pas  faire  se  rfeout  en  dommages  et  int^rets,  en  cas  d'inex^ution 
de  la  part  du  d^biteur';  supported  by  M.  Bigot-Pr^ameneu  (Receuil 
des  discours,  t.  i.  p.  430)  on  the  ground  that '  nul  ne  pent  etre  contraint 
dans  sa  personne  h  faire  ou  k  ne  pas  faire  une  chose,  et  que,  si  cela  etait 
possible,  ce  serait  une  violence  qui  ne  pent  pas  etre  un  mode  d'ex^ution 
des  contrats.'  There  is  nothing  inconsistent  with  this  view  in  arts.  1 143, 
1 144,  under  which  the  injured  party  may  be  authorised  to  carry  out  the 
work  agreed  upon  at  the  expense  of  the  defaulter;  nor  in  art.  1610,  under 
which  a  purchaser  may  be  put  into  possession  of  the  thing  sold  if  the 
vendor  refuses  to  deliver  it  to  him.  Some  of  the  older  French  authorities 
had  maintained  that  even  here  the  sole  remedy  should  be  in  damages,  but 
Pothier,  following  Paulus,  Sent.  vi.  i.  13.  4,  and  Cujas,  ad.  1.  i  de  Act 
Empt.,  had  argued  that  the  Court  should  authorise  the  purchaser  himself 
to  seize  the  thing  sold, '  ou  d'en  expulser  le  vendeur  par  le  ministere  d'un 
sergent,' explaining  that  the  maxim 'nemo  potest  praecise  cogi  adfactum' 
only  applies  '  lorsque  le  fait  renferme  dans  I'obligation  est  un  pur  fait  de 
la  personne  du  debiteur,  merum  factum,  .  .  .  il  n'en  est  pas  de  meme  du 
fait  de  la  tradition :  ce  fait  non  est  merum  factum.,  sed  magis  ad  daiionem 
accedit,'  Contrat  de  Vente,  §  68.  I  was  indebted  for  a  learned  and  interest- 
ing communication  upon  this  subject  to  Mr.  Justice  Proudfoot  of  Toronto 
(afterwards  embodied  in  an  article  in  the  Canadian  Law  Times ,  for  October, 
1894),  who  was  disposed  to  go  further  than  I  am  able  to  follow  him  in  dis- 
covering approximations  to  Specific  Performance  in  Roman  law  and  In  the 
derivative  systems.  On  German  law,  see  a  learned  article,  signed  E.  S., 
in  L.  Q.  R.  viii.  p.  252,  citing  Demburg,  Preussisches  Privatrecht,  Bd.  i. 
p.  276,  and  tlie  German  Code  of  Civil  Procedure,  774,  775- 


3i8 


PRIVATE   LAW:    REMEDIAL   RIGHTS. 


CHAP.    XIII. 

The  right 
is  '  in  per- 
sonam.' 


We  have  seen  that  while  some  '  antecedent '  rights  are 
available  '  in  rem,'  others  are  available  only  '  in  personam.' 
'  Remedial '  rights  are  available,  as  a  rule,  '  in  personam,' 
i.  e.  against  the  wrong-doer,  who,  by  the  act  of  wrong- 
doing, becomes  at  once  the  ascertained  person  of  incidence 
of  the  remedial  right.  Such  rights  as  those  of  lien  and 
distress,  and  especially  certain  rights  enforceable  in  Courts 
of  Admiralty,  which  are  doubtless  capable  of  being  repre- 
sented as  remedial  rights  '  in  rem  \'  may  also  be  treated 
as  being  merely  modes  of  execution,  by  which  the  true 
remedial  right  is  made  effective^. 


Origin. 


Infringe- 
ments. 


The  causes,  or  '  investitive  facts,'  of  remedial  rights  are 
always  infringements  of  antecedent  rights,  and  have  there- 
fore been  incidentally  mentioned  in  the  course  of  the 
discussion  of  such  rights  which  has  occupied  the  two 
preceding  chapters.  It  is  indeed  impossible  to  describe 
what  we  have  called  the  'orbit'  of  a  right,  without  at 
the  same  time  mentioning  the  acts  which  break  in  upon 
it,  since  the  extent  of  a  right  is  the  same  thing  with  the 
power  of  him  who  is  clothed  with  it  to  interfere,  positively 
or  negatively,  with  the  acts  of  others  ^  It  will  now 
however  be  necessary  to  consider  infringements  more 
specifically,  and  to  classify  them  according  to  the  rights 
which  they  infringe,  and  with  which  indeed,  for  the  reason 
just  given,  they  are  precisely  correlative. 

Since  conduct  which  is  straightforward  came  to  be 
spoken  of  eulogistically  as  being  'rectum,'  'directum' 
(whence  'droit'),  'recht'  and  'right,'  conduct  of  the 
opposite  character  naturally  came  to  be  expressed  by  the 
terms  '  delictum,'  '  deUt,'  as  deviating  from  the  right  path, 
and  'wrong'  or    'tort,'  as    twisted    out  of  the  straight 


*■  See  the  case  of  the  Parlement  Beige,  L.  R.  5  P.  D.  127. 

'  Supra,  p.  161.  '  Supra,  p.  144- 


TORTS.  319 

line\      Similar    conduct    is    less    descriptively    called    in  chap.  xm. 
German  '  Rechtsverletzung.' 

These  terms  are    alike    employed    in    their    respective  Species  of. 
languages  to  denote,  in  a  very  general  sense,  acts  which 
are  violations  of  rights.     They  are  however  usually  applied  Breaches 
only  to  '  wrongs  independent  of  contract  ^ ' ;  i.  e.  the  large  tract"" 
class  of  wrongful  acts  which  are  breaches  of  contract  are 
specifically  so  described.    Certain  other  classes  of  wrongful  Torts, 
acts  also  have  for  historical  reasons  specific  designations 
which  take  them  out  of  the  category  of  delicts,  or  torts. 
Thus  Roman  law  treated  acts  of  certain  kinds  as  giving  rise 
to  obligations  not  'ex  delicto,'  but  'quasi  ex  delicto,'  nor 
are  breaches  of  trust,  or  such  acts  as  are  charged  against 
a  co-respondent   in   the   Divorce    Court,  since   they  were 
alike  unknown  to  the  old  common  law,  described  as  torts 
by  the  law  of  England^. 

The  distinction  between  those  wrongs  which  are  generi-  Difference 
cally  called   torts '  and  those  which  are  called  crimes  may  torts  and 
at  first  sight  appear  to  be  a  fine  one.      The   same   set  of"^™^^- 
circumstances  will,  in   fact,  from   one  point  of  view  con- 
stitute a   tort,    while    from   another   point   of   view  they 
amount   to   a   crime.      In    the   case,   for    instance,  of  an 
assault,  the  right  violated  is  that  which  every  man  has 
that  his  bodily  safety  shall  be  respected,  and  for  the  wrong 
done  to  this  right  the  sufferer  is  entitled  to  get  damages. 
But  this  is  not  all.    The  act  of  violence  is  a  menace  to 
the   safety  of    society  generally,  and    will    therefore    be 
punished  by  the  State.    So  a  libel  is  said  to  violate  not 

'  Tam  multa  surgunt  perfidorum  compita 
Tortis  polita  erroribus.'    Prudent,  in  Apotheos.  Hymn.  i. 

'  Sicut  illi  qui  in  suo  ministerio  tortum  faciunt,'  occurs  in  an  edict  of 
Charles  the  Bald.  '  Tort  a  la  leye  est  contrarye.'  Britton,  fol.  i  r6. 

'  A  phrase  due  to  the  Common  Law  Procedure  Act,  1852;  though  the 
opposition  between  actions  '  founded  on  contract '  and  '  founded  on  tort ' 
occurs  in  the  County  Courts  Act,  1846. 

*  Although  the  action  for  crim.  con.  was  for  a  tort.  On  the  non- 
recognition,  till  comparatively  recent  times,  of  a  general  law  applicable 
to  torts,  see  Holmes  J.  in  Harvard  Law  Review,  xii.  p.  451. 


320 


PRIVATE   LAW:    REMEDIAL   RIGHTS. 


CHAP.  XIII.  only  the  right  of  an  individual  not  to  be  defamed,  but 
also  the  right  of  the  State  that  no  incentive  shall  be 
given  to  a  breach  of  the  peace.  It  is  sometimes  alleged 
by  books  of  authority  that  the  difference  between  a  tort 
and  a  crime  is  a  matter  of  procedure,  the  former  being 
redressed  by  the  civil,  while  the  latter  is  punished  by  the 
criminal  courts.  But  the  distinction  lies  deeper,  and  is 
well  expressed  by  Blackstone,  who  says  that  torts  are  an 
'infringement  or  privation  of  the  private,  or  civil,  rights 
belonging  to  individuals,  considered  as  individuals ;  crimes 
are  a  breach  of  public  rights  and  duties  which  affect  the 
whole  community,  considered  as  a  community  \'  The  right 
which  is  violated  by  a  tort  is  always  a  different  right  from 
that  which  is  violated  by  a  crime.  The  person  of  inherence 
in  the  former  case  is  an  individual,  in  the  latter  case  is 
the  State.  In  a  French  criminal  trial  there  may  accord- 
ingly appear  not  only  the  public  prosecutor,  representing 
the  State  and  demanding  the  punishment  of  the  offender, 
but  also  the  injured  individual,  as  'partie  civile,'  asking 
for  damages  for  the  loss  which  he  has  personally 
sustained  ^. 

The  far-reaching  consequences  of  acts  become  more  and 
more  visible  with  the  advance  of  civilisation,  and  the  State 
tends  more  and  more  to  recognise  as  offences  against  the 
community  acts  which  it  formerly  only  saw  to  be  injurious 
to  individuals  ^. 

Possible  Wrongful  acts  may  be,  and  are,  classified  on  five  different 

classifica-  .      •   ,         ,  i        , 

tions  of         prmciples  at  least. 

wrongs. 


*  Cf.  Lord  Lindley  in  Quinn  v.  Leathern  [1901]  A.  C.  at  p.  542. 

^  Code  d'Instruction  Criminelle,  art.  63.  On  the  old  English  remedy, 
known  as  an  'Appeal,'  abolished  by  59  Geo.  III.  c.  46,  see  4  Bl.  Comm. 
312. 

'  'Dalits  at  quasi-d^lits '  are  dealt  with  in  the  Code  Civil,  arts. 
1382-1386;  'Unerlaubte  Handlungen,'  in  the  Biirgerliches  Gesetzbuch, 
823-853.  See  in  Journ.  Comp.  Leg.,  N.  S.,  xii.  p.  274,  a  notice  by  S.  Amos 
of  La  nozione  del  Torto  nella  dottrina  e  nella  giurisprudenza  inglese,  by 
M.  Sarfatti. 


CLASSIFICATION   OF   WRONGFUL   ACTS.         321 

i.  According  to  the  state  of  the  will  of  the  wrong-doer,  chap.  xui. 
which  may  conceivably  be,  (i)  entirely  absent,  as  in  acts 
of  innocent  trespass;   (2)   such   as    exhibits    negligence^; 
(3)  such    as    exhibits   intention,  sometimes    described  as 
'  malice.' 

As  has  already  been  explained,  the  law  has  in  modern 
times  substituted,  in  many  cases,  for  an  enquiry  into  the 
state  of  mind  of  a  given  defendant  an  enquiry  into  the 
conformity  of  his  acts  to  an  external  standard,  viz.  to 
the  conduct  which  may  be  reasonably  expected  from  a 
person  of  his  class  \ 

ii.  According  to  the  state  of  the  will  of  the  injured 
party,  which  may  conceivably,  (i)  fairly  consent  to  an 
invasion  of  his  right,  which  by  being  thus  waived,  becomes 
no  right,  and  its  invasion  no  wrong,  since  '  volenti  non  fit 
iniuria ' ' ;  and  an  act  ab  initio  wrongful  may  lose  this 
character  by  the  subsequently  given  assent  of  the  injured 
party ;  (2)  be  flatly  opposed  to  the  act,  which  is  then,  of 
course,  tortious,  even  when  an  apparent  assent  to  it  is 
procured  by  duress ;  (3)  be  induced  to  assent  by  the  deceit 
of  the  party  injuring,  the  act  of  so  procuring  assent  by 
deceit  being  the  wrong  known  as  'fraud.' 


'  Supra,  p.  107. 

*  Supra,  pp.  1 07- 1 1 1.  For  an  interesting  enquiry  as  to  the  ground  of 
liability  for  torts,  and  especially  whether  or  no  they  imply  moral  blame- 
worthiness, see  Holmes,  The  Common  Law,  p.  79.  Mr.  Justice  Holmes 
points  out,  in  another  chapter,  that '  law  started  from  those  intentional 
wrongs  which  are  simplest  and  nearest  to  the  feeling  of  revenge  which 
leads  to  self-redress.  It  thus  naturally  adopted  the  vocabulary,  and  in 
some  degree  the  tests,  of  morals.  But  as  the  law  has  grown,  its  standards 
have  necessarily  become  external,  because  they  have  considered  not  the 
actual  condition  of  the  particular  defendant,  but  whether  his  conduct 
would  have  been  wrong  in  the  fair  average  meml^er  of  the  community 
whom  he  is  expected  to  equal  at  his  peril.'  lb.  p.  161.  Cf.  also 
Sir  F.  Pollock's  work  on  Torts. 

'  Supra,  p.  149.  As  to  the  application  of  this  principle,  and  the 
distinction  between  'sciens'  and  'volens,'  see  Thomas  v.  Quartermain, 
18  Q.  B.  D.  685;  Smith  v.  Baker  [1891]  App.  Ca.  325;  Williams  v. 
Birmingham  Battery  Co.  [1892]  2  Q.  B.  338.  On  the  change  of  view 
marked  by  the  two  last  cases,  see  L.  Q.  R.  xv.  p.  336. 

HOLLAND  Y 


322 


PRIVATE    LAW:    REMEDIAL   RIGHTS. 


CHAP.   XIII. 


Principle 
selected. 


List  of 
wrongs. 


iii.  According  to  the  means  whereby  the  Avrong  is 
effected,  whether,  for  instance,  by  physical  violence,  by 
words  uttered,  or  by  omission  to  carry  out  a  contract. 

iv.  Accordingly  as  actual  loss  to  the  injured  party  follow- 
ing upon  the  act  of  the  wrong-doer  is,  or  is  not,  essential 
to  its  tortious  character*. 

V.  According  to  the  nature  of  the  right  invaded, 
whether,  for  instance,  it  be  a  right  to  personal  freedom, 
or  to  a  monopoly,  or  to  the  fulfilment  of  a  contract. 

Writers  who  waver  between  these  various  points  of 
view,  subdividing  one  portion  of  the  whole  class  of  wrong- 
ful acts  upon  one  principle,  and  another  portion  upon 
another  principle,  involve  themselves  in  unnecessary  diffi- 
culties. The  last-mentioned  principle  of  division  is  to  be 
preferred.  When  it  is  once  known  of  what  right  any 
given  wrong  is  an  invasion,  its  other  characteristics  follow 
as  a  matter  of  course. 

A  tabular  view  of  wrongful  acts,  in  which  each  is 
referred  to  the  right  of  which  it  is  an  infringement,  might 
easily  be  constructed  from  the  data  contained  in  the  two 
preceding  chapters. 

Among  rights  *  in  rem,'  that  to  personal  safety  is  violated 
by  assault  or  imprisonment ;  family  rights,  by  abduction 
of,  or  adultery  with,  a  wife,  by  seduction  of  a  servant, 
or  enticing  away  a  slave ;  the  right  to  one's  good  name, 
by  defamation;  rights  generally  available,  by  nuisance, 
and  malicious  arrest  or  prosecution;  rights  of  possession, 
by  trespass,  conversion,  detinue,  and  '  furtum ' ;  rights  of 
ownership  of  tangible  objects,  by  the  same  acts;  rights 
of  copyright,  patent-right  and  trade-mark,  by  'infringe- 
ment ' ;  rights  '  in  re  aliena,'  by  '  disturbance '  of  an 
easement,  or  '  conversion '  of  a  pledge  ;  rights  to  imnumity 
from  fraud,  by  'deceit.' 

Among  rights  '  in    personam,'  family  rights,  and    their 


*  See  per  Bowen,  L.  J.,  in  Ratcliffe  v.  Evans  [1892]  2  Q.  B.  524. 


WRONGS  INDEPENDENT  OF  CONTRACT.   323 

analogues,  are  infringed  by  '  subtraction,'  adultery,  refusal  chap.  xm. 
of  due  aliment,  ingratitude  on  the  part  of  a  freedman,  or 
neglect  by  a  vassal  of  his  feudal  duties ;  fiduciary  rights, 
by  breach  of  trust ;  rights  of  a  reversioner,  by  '  waste ' ; 
what  we  have  called  meritorious  rights,  by  refusal  of  the 
merited  reward;  rights  against  ofiicials,  by  neglect  on 
their  part  to  perform  their  duties;  rights  'ex  contractu,' 
by  breaches  of  contract,  consisting,  according  to  the  nature 
of  the  contract  in  question,  in  such  acts  or  omissions  as 
non-payment,  non-delivery,  defective  care-taking,  default 
in  marrying,  non-render  of  services,  negligent  render  of 
services,  refusal  to  enter  into  partnership,  doing  of  acts 
promised  not  to  be  done,  breach  of  warranty,  or  non-return 
of  pledge. 

With  reference  to  these  acts  generally,  the  rule  holds  Liability 
good  that '  qui  f acit  per  alium  facit  per  se.'    The  employer  ggrvmits^ 
is  responsible  for  acts  which  he  has  ordered  to  be  done,  or 
which  have  been  done  by  his  servant,  without  orders  but 
within  the  scope  of  the  servant's  employment  \ 

The  right  resulting  from  '  wrongs  independent  of  con-  for 
tract '  is  of  a  wider  character  than  that  which  results  from  Jpc^ntract 
breaches  of  contract.    In  the  former  case  only,  as  a  rule,  ^^'^  torts, 
may  mental  and  bodily  suffering  be   taken  into  account 
in  measuring  the  damages  to  be  awarded.    On  the  other 
hand,  a  breach  of  contract  is  more  readily  established  than 
a  wrong  of  another  kind,  since  it  depends  less  on   any 
question  as  to  the  state  of  the  will  of  the  wrong-doer,  and 
some  damages  may  be  had  for  every  breach  of  contract, 
whether  or  no  it  be  the  cause  of  any  actual  loss.   '  Direct,'  Damages, 
or  'general'  damages  are  those  which  are  the  necessary 
and  immediate  consequence  of  the  wrong,  while  '  indirect,' 


'  Cf .  supra,  p.  1 49.  On  the  liability  of  Contractors  as  well  as  their  sub- 
contractors, see  Bower  v.  Peate,  L.  R.  i  Q.  B.  D.  321.  On  the  liability  of 
a  shipowner  for  the  acts  of  his  master  being  limited  by  ^ujxepder  of  th^ 
ship,  see  Holmes,  Common  Lftw,  p.  30. 

V2 


324 


PRIVATE   LAW:    REMEDIAL   RIGHTS. 


CHAP.  xiii.  or  'special,'  damages  are  sometimes  granted  in  respect  of 
its  remoter  consequences  \ 


Extinc- 
tion. 


Transfer.  What  has  been  said  as  to  the  difficulties  attending  the 

•  transfer  of  antecedent  rights  '  in  personam '  applies,  with 
greater  strength,  to  the  transfer  of  remedial  rights  ^.  The 
non-transferability  to  the  representatives  of  a  deceased 
person  of  such  remedial  rights  as  arise  from  the  violation 
of  a  right  intimately  connected  with  his  individuality 
is  expressed  by  the  maxim, '  Actio  personalis  moritur  cum 
persona  ^' 

A  mere  performance  of  the  duty  antecedently  owed  is 
no  discharge  of  the  remedial  right  arising  from  its  non- 
performance, but  the  right  may  be  extinguished  in  a 
variety  of  other  ways,  including  some  of  those  which 
are  apphcable  to  the  extinction  of  antecedent  rights  '  in 
personam  *.' 
Release.  i.  The  person   of    inherence    may  formally  release   his 

right  of  action,  for  instance  by  deed  or  by  the  AquiUan 
stipulation;  or  may  give  a  covenant  not  to  sue,  'pactum 
de  non  petendo';  or  may  enter  into,  what  is  called  in 
English  law,  'an  accord  and  satisfaction'  with  the  person 
of  incidence,  i.  e.  into  an  agreement  substituting  some  other 
act  for  the  act  which  has  not  been  performed,  and  followed 


*  On  the  'measure  of  damages,'  cf.  'pretia  rerum  non  ex  afifectione 
singulorum  sed  communiter  fungi.'  Dig.  ix.  2.  33.  Cf.  Cod.  vii.  47. 
Does  an  injured  person  weaken  his  claim  against  the  person  who  caused 
the  injury,  or  against  an  insurance  society,  by  refusing  to  submit  to  an 
operation  suitable  to  his  case?  See  F.  Endemann,  Die  Rechtswirkung 
der  Ablehnung  einer  Operation,  Berlin,  1893. 

^  Supra,  pp.  153,  303.  On  the  various  meanings  of  the  term  'special 
damages,'  see  Ratclifife  v.  Evans,  u.  supra. 

'  Supra,  pp.  163,  307.  An  action  for  breach  of  promise  of  marriage, 
without  damage  to  the  estate,  does  not  survive  to  the  representatives  of 
the  promisee.  Chamberlain  v.  Williamson,  2  M.  &  S.  408,  nor  against  the 
representatives  of  the  promisor,  Finlay  v.  Chimey,  20  Q.  B.  D.  494.  Cf. 
Stanhope  v.  Stanhope  and  Adye,  ii  Prob.  D.  (C.  A.)  103,  as  to  a  decree 
nisi  of  Divorce. 

*  Cf.  supra,  p.  306. 


EXTINCTION.  325 

by  the  performance-  of  that  act.    The  person  of  inherence  chap.  xiii. 

may  also  by  his  conduct  so  '  ratify '  a  wrong  done  to  him  Ratifica- 

as  to  waive   his  resulting   right  of   redress,  as  when  the 

owner  of  goods  wrongfully  sold  treats  the  sale  as  lawful 

by  taking  part  of   the  purchase  money.    The  right   may 

likewise  be  lost  by  — 

ii.  The  bankruptcy  of  the  person  of  incidence.  Bank- 

ruptey. 

iii.  Set-oflf.  S^t^^ 

iv.  Merger.  It  has  been  laid  down  that  the  giving  of  a  Merger, 
covenant  in  the  place  of  a  simple  contract  does  not  '  merge 
or  extinguish  the  debt,  but  it  merges  the  remedy  by  way 
of  proceeding  upon  the  simple  contract.  The  intention  of 
the  parties  has  nothing  to  do  with  that.  The  policy  of  the 
law  is  that  there  shall  not  be  two  subsisting  remedies,  one 
upon  the  covenant  and  another  upon  the  simple  contract, 
by  the  same  person  against  the  same  person  for  the  same 
demand  \'  So  a  judgment  in  favour  of  the  plaintiff  is 
'  a  bar  to  the  original  cause  of  action,  because  it  is  thereby 
reduced  to  a  certainty  and  the  object  of  the  suit  attained, 
so  far  as  it  can  be  at  that  stage ;  and  it  would  be  useless 
and  vexatious  to  subject  the  defendant  to  another  suit  for 
the  purpose  of  attaining  the  same  result.  Hence  the  maxim 
Transit  in  rem  iudicatam.  .  .  .  The  cause  of  action  is 
changed  into  a  matter  of  record,  which  is  of  a  higher 
nature,  and  the  inferior  remedy  is  merged  in  the  higher  ^.' 
So  in  Roman  law  an  obligation  was  transmuted  by  'litis 
contestatio,'  and  again  by  judgment,  which  was  expressed 
by  saying,  'ante  litem  contestatam  dare  debitorem  opor- 
tere,  post  litem  contestatam  condemnari  oportere,  post 
condemnationem  iudicatum  facere  oportere  ^'  An  award 
under  arbitration  does  not  usually  extinguish  a  remedial 
right,  unless  followed  by  performance  of  the  award. 


•  Price  V.  Moulton,  10  C.  B.  561. 

*  King  V.  Hoare,  13  M.  &  W.  494;  cf.  Kendall  v.  Hamilton,  4  App. 
Ca.  504. 

'  Gai.  iii.  180. 


326 


PRIVATE    LAW:    REMEDIAL  RIGHTS. 


Estoppel. 


Prescrip- 
tion. 


CHAP.  XIII.  V.  *  Estoppel,'  by  a  judgment  for  the  defendant.  'The 
facts  actually  decided  by  an  issue  in  any  suit  cannot  be 
again  litigated  between  the  same  parties,  and  are  evidence 
between  them,  and  that  conclusive,  for  the  purpose  of 
terminating  litigation  \' 

vi.  Extinctive  prescription,  or  limitation  of  actions, 
introduced,  as  it  is  expressed  in  the  Act  of  James  I, 
*  for  quieting  of  men's  estates  and  avoiding  of  suits  V 
by  depriving  the  remedial  right  of  its  judicial  remedy, 
reduces  it  to  the  position  of  a  merely  '  natural '  obligation, 
which  however  still  remains  capable  of  supporting  a  lien 
or  pledge  ^ 

The  lapse  of  time  necessary  to  produce  this  result  varies 
very  widely  in  different  systems,  and  with  reference  to 
rights  of  different  species  *.  It  begins  to  run  from  the 
moment  when  the  remedial  right  comes  into  existence, 
in  other  words,  when  the  antecedent  right  is  violated. 
It  may  be  interrupted,  or  prevented  from  running  by 
various  causes,  such  as  the  minority,  imprisonment,  or 
absence  from  the  country  of  the  person  whose  right 
would  otherwise  be  affected  by  it.  On  the  other  hand, 
the  person  who  would  otherwise  benefit  by  it  may  keep 
alive  his  indebtedness  by  such  acts  as  part  payment,  or 
payment  of  interest,  or  express  acknowledgment  with 
a  promise  to  pay. 

There  are  cases  in  which  a  remedial  right  is  suspended 
without  being  lost.  Thus  a  Court  will  refuse  to  try  an 
action  while  an  action  to  try  the  same  question  is  pending 
before  a  Court  of   concurrent   jurisdiction,  in  which  case 


Suspen 
sion. 


'  Boileau  v.  Rutlin,  2  Ex.  665.  '  Res  iudicata  pro  veritate  accipitur,' 
Dig.  1.  17.  207.  On  the  'exceptio  rei  iudicatae,'  see  Dig.  xliv.  2.  The 
principle  was  applied  to  awards  between  nations  by  the  Hague  Tribunal 
in  1902,  in  deciding  the  first  case  submitted  to  it.  See  the  judgment  in 
La  Justice  Internationale,  1903,  p.  18. 

*  21  lac.  I.  c.  16.  ^  Supra,  pp.  222  to.,  236. 

*  Cf.  German  Civil  Code,  94-225. 


EXTINCTION.  327 

there  is   said  to  be  '  lis  alibi  pendens.'     So  also  it  was  chap.  xni. 

long  said  to  be  a  principle  of  English  law  that  when  the 

fact  which  gives  rise  to  the  remedial  right  amounts  also  to 

a  felony,  the  remedy  of  the  injured  individual  is  postponed 

to  the  punishment  of  the  crime;   but  grave  doubt  has  of 

late  been  thrown  upon  this  alleged  prmciple*. 

1  For  the  history  of  the  rule  to  this  effect,  see  Wells  v.  Abrahams,  L.  R. 
7  Q.  B.  554,  where  Blackburn,  J.,  traces  all  the  dicta  in  its  favour  back  to 
the  case  of  Markham  v.  Cobl)e,  Sir  W.  Jones,  147,  decided  in  1626.  In  ex 
parte  Ball  v.  Shepherd  (1879),  10  Ch.  D.  (C.  A.)  667,  and  Midland  Rail. 
Co.  V.  Smith  (1881),  6Q.  B.  D.  561,  the  rule  is  treated  as  finally  exploded ; 
but  see  Appleby  v.  Franklin  (1885),  17  Q.  B.  D.  93,  and  Windmill  Local 
Board  of  Health  v.  Vint,  45  Ch.  D.  (C.  A.)  351.     Cf.  Dig.  xlvu.  2.  56.  i. 


CHAPTER  XIV. 


PRIVATE   LAW :     ABNORMAL. 

Normal  Among  the  modes  in  which  the  field  of  law  may  be 

normal'  mapped  out,  we  have  already  explained  that  which  divides 
persons.  it  into  'normal'  and  'abnormal';  the  former  kind  of  law 
dealing  with  rights  as  unaffected  by  any  special  charac- 
teristics of  the  persons  with  whom  they  are  connected, 
the  latter  kind  dealing  with  rights  as  so  affected  \  In 
all  statements  with  reference  to  rights  the  standard  type 
of  personality  is  assumed,  unless  the  contrary  is  expressed ; 
and  it  is  only  when  there  is  a  deviation  from  that  type 
that  the  character  of  the  persons  who  are  two  of  the 
factors  into  which,  as  we  have  seen,  it  is  possible  to 
analyse  every  right,  needs  any  investigation.  The  typical 
person,  who  is  thus  assumed  as  a  factor,  is,  in  the  first 
place,  a  human  being,  as  opposed  to  what-  is  called  'an 
artificial  person  ^'  In  the  next  place,  he  is  unaffected 
by  any  such  peculiarity  as  infancy,  coverture,  alienage, 
slavery,  and  so  forth. 
In  considering  the  various  classes  of  substantive  rights, 


*  Supra,  pp.  129,  i6i.  '  Supra,  p.  90. 


ARTIFICIAL   PERSONS.  329 

we  have  hitherto    treated  of   them  as  normal.    We  are  chap.  xiv. 
now  about  to  treat  of  the  effect  produced  upon  them  by 
abnormity  of  personality. 

It  was  usual  in  old  grammars  to  explain  the  cases  Abnormal 
of  nouns  by  a  diagram,  in  which  the  nominative  case^^^^"^' 
was  represented  by  an  upright  line,  from  the  base  of  which 
lines,  representing  the  genitive,  dative,  accusative,  vocative, 
and  ablative,  sloped  off  at  gradually  increasing  angles. 
The  accompanying  figure  may  serve  to  illustrate  in  a 
similar  manner  the  variations  of  juristic  personahty. 

Nonnal  person, 

^  feme  covert, 
,conTicf, 


The  most  marked  distinction  between  abnormal  persons  Natural 
is  that  some  are  natural,  i.  e.  are  individual  human  beings,  p?  j  *  ^ 
while  others  are  artificial,  i.  e.  are  aggregates  of  human 
beings,  or    of    property,  which  are    treated    by  law,  for 
certain  purposes,  as  if  they  were  individual  human  beings  *. 

I.  It  is  by  no  means  at  the  discretion  of  any  aggregate 
of  human    beings   so  to  coalesce  as   to  sustain  a   single  Artificial 
personality.    In  the  words  of  Gains, '  neque  societas,  neque 
collegium,  neque  huiusmodi  corpus,  passim  omnibus  habere 
conceditur:  nam  et  legibus  et  senatusconsultis  et  princi- 

*  Supra,  pp.  90,  137.  Order  Ixxi.  i,  of  the  Rules  of  the  Supreme  Court 
of  1883,  provides  that  the  word  '  person'  shall,  in  the  construction  of  the 
rules,  unless  there  is  anything  in  the  subject  or  context  repugnant 
thereto,  include  a  body  corporate  or  politic.  By  the  Interpretation  Act, 
1889,  s.  19, '  In  this  act,  and  in  every  act  passed  after  the  commencement 
of  this  act,  the  expression  "person"  shall,  unless  the  contrary  intention 
appears,  include  any  body  of  persons,  corporate  or  unincorporate.' 


330 


PRIVATE   LAW:    ABNORMAL. 


CHAP.  XIV.  palibus  constitutionibus  ea  res  coercetur*.'  According  to 
some  authorities,  the  requirement  of  State  recognition  as 
a  pre-requisite  of  juristic  personality  was  unknown  under 
the  Republic.  It  was  certainly  relaxed  in  favour  of 
ecclesiastical  bodies  by  the  Christian  Emperors,  and  was 
not,  as  a  general  rule,  insisted  upon  during  the  middle 
ages  ^.  Artificial  persons  are  created  by  a  charter  granted 
by  the  executive  authority  in  a  State,  or  by  a  special 
statute  passed  by  the  legislature,  but  of  late  years  also 
by  virtue  of  general  statutes,  which  prescribe  the  con- 
ditions under  which  voluntary  associations  may  acquire 
a  corporate  character^.  They  may  be  formed  wholly 
of  natural  persons,  or  wholly  of  artificial  persons,  or  of 
a  mixture  of  artificial  and  natural  persons.  They  cease  to 
exist  by  no  longer  comprising  the  requisite  number  of 
subordinate  persons.  Or  by  the  revocation  or  surrender  of 
their  privileges. 

The  characteristics  of  an  artificial  person  differ  from 
those  of  a  group  of  natural  persons  no  less  than  from 
those  of  a  single  natural  person.  On  the  one  hand, 
it  is  not  merely  the  sum  total  of  its  component  members, 
but  something  superadded  to  them*.  It  may  remain, 
although  they  one  and  all  are  changed,  'in  decurionibus 


Character 
istics  of. 


•  Dig.  iii.  4. 1 .  pr.  Cf .  Dig.  xxxiv.  5.  20,  xlvii.  22.  '  Tutti  i  corpi  morali, 
legalmente  riconosciuti,  sono  considerati  come  persone,  e  godono  dei 
diritti  civili  secondo  le  leggi  e  gli  usi  osservati  come  diritto  pubblico.' 
Codice  Civile,  art.  2. 

^  See  on  the  one  hand,  Demburg,  Pandekten,  i.  p.  145;  on  the  other, 
Gierke,  Deutsches  Genossenschaftsrecht,  iii.  pp.  97-208. 

'  Such  as  'The  Companies  Act,  1862.'  The  Crown  may  delegate  its 
power  of  creating  corporations.  'So,'  says  Blackstone,  'the  Chancellor 
of  the  University  of  Oxford  has  power  by  charter  to  erect  corporations ; 
and  has  actually  often  exerted  it,  in  the  erection  of  several  matriculated 
companies  of  tradesmen  subservient  to  the  students.'    Comm.  i.  p.  474. 

*  So,  says  Paulus,  the  members  of  an  illicit  'collegium'  can  take 
a  legacy  only  if  it  is  left  to  them  individually:  'hi  enim  non  quasi 
collegium,  sed  quasi  certi  homines,  admittentur  ad  legatum.'  Dig. 
xxxiv.  5.  20.  A  'municipium,'  according  to  Ulpian,  xxii.  5,  cannot  be 
instituted  heir,  '  quoniara  incertum  corpus  est.' 


CORPORATIONS.  331 

vel  aliis  universitatibus  nihil  refert  utrum  omnes  idem  chap.  xiv. 
maneant,  an  pars  maneat,  vel  omnes  immutati  sint^' 
The  property  which  it  may  hold  does  not  belong  to  the 
members  either  individually  or  collectively:  'quibus  per- 
missum  est  corpus  habere  collegii,  societatis,  sive  cuiusque 
alterius  eorum  nomine,  proprium  est,  ad  exemplum  rei 
publicae,  habere  res  communes  ^.'  Its  claims  and  Uabilities 
are  its  own,  'si  quid  universitati  debetur,  singulis  non 
debetur ;  nee  quod  debet  universitas  singuli  debent '.'  Its 
agent,  though  appointed  by  a  majority  of  the  members, 
does  not  represent  them,  'hie  enim  pro  republica  vel 
universitate  intervenit,  non  pro  singulis  ^'  In  all  these 
respects  true  artificial  persons  are  distinguishable  from  clubs 
and  unincorporated  trading  partnerships,  however  large. 

On  the  other  hand,  an  artificial  necessarily  differs 
in  many  respects  from  a  natural  person.  '  A  corporation 
aggregate  of  many  is  invisible,  immortal,  and  rests  only 
in  intendment  and  consideration  of  law.  It  has  no  soul, 
neither  is  it  subject  to  the  imbecilities  of  the  body  ^.'  Its 
will  is  that  of  the  majority  of  its  members,  and  can  be 
expressed  only  by  means  of  an  agent ;  there  are  many 
wrongful  acts  of  which  it  is  obviously  incapable " ;  and  its 
capacity  for  being  the  subject  of  rights, '  Rechtsfahigkeit,* 
and  for  performing  legal  acts,  '  Handlungsf ahigkeit,'  is 
strictly  limited  by  the  purposes  by  which  its  existence 
is  recognised. 

The  invention  of  corporations  has  been  justly  described  Utility  of. 
by  a  high  authority  upon  the  subject  as  one  which, 
'perhaps  more  than  any  other  human  device,  has  con- 
tributed to  the  civilisation  of  Europe  and  the  freedom 
of  its  states.'  'By  this  means,'  says  the  same  writer, 
'  municipalities  were  furnished  with  a  form  of  government 


'  Dig.  iii.  4.  7.  2.        ^  lb.  4.  i.  i.        '  lb.  4.  7.  i.  lb.  4.  2. 

*  The  case  of  Sutton's  Hospital,  10  Rep.  32  b. 

'  Dig.  iv.  2.  9,  3.  15.     Cf.  Metropolitan  Saloon  Company  v.  Hawkins, 
4  H.  &  N.  87. 


332 


PRIVATE   LAW:    ABNORMAL. 


CHAP.  XIV. 


Classifica- 
tion of. 


which  never  wore  out.  Charitable  trusts  were  secured 
to  the  objects  of  them  so  long  as  such  objects  should 
continue  to  be  found,  the  protection,  improvement  and 
encouragement  of  trades  and  arts  were  permanently 
provided  for,  and  learning  and  religion  kept  alive  and 
cherished  in  times  through  which  probably  no  other 
means  can  be  mentioned  that  would  appear  equally  well 
qualified  to  preserve  them\' 

The  purposes  which  artificial  persons  are  intended  to 
promote  are  very  various,  and  such  persons  may  perhaps 
be  classified,  according  as  they  subserve  one  or  other  of 
them,  under  the  following  heads  ^: — 

(i)  Subordinately  political,  such  as  municipal  corpora- 
tions, generally. 

(2)  Administrative,  such  as  the  Trinity  House  or  the 
College  of  Heralds. 

(3)  Professional,  such  as  the  College  of  Physicians  or 
the  Incorporated  Law  Society. 

(4)  Religious,  such  as  the  Chapter  of  St.  Paul's  or  the 
Church  Missionary  Society. 

(5)  Scientific  and  Artistic,  such  as  the  Royal  Society 
or  the  Royal  Academy. 

(6)  For  the  Promotion  of  Education,  such  as  the 
University  of  Oxford  or  the  Girls  Public  Day  School 
Trust  Limited. 

(7)  Eleemosynary,  such  as  St.  Thomas's  Hospital,  or  the 
Corporation  of  the  Sons  of  the  Clergy. 

(8)  Trading,  such  as  the  Great  Western  Railway,  the 


'  Grant,  on  Corporations,  p.  4.  On  the  archaeology  of  the  subject,  and 
on  recent  controversies  as  to  the  true  character  of '  fictitious '  persons,  see 
Prof.  Maitland's  Introduction  to  his  translation  of  Gierke's  Political 
Theories  of  the  Middle  Ages,  an  article  by  the  same  writ«r  in  the  Journal 
Comp.  Leg.,  N.  S.,  xiv.  p.  192,  with  references  to  French  literature  at  p.  2CX), 
and  Prof.  Gierke's  Pectoral  Address  (1902)  on  Das  Wesen  der  mensch- 
lichen  Verbiinde. 

'  For  a  classification  of  juristic  persons  from  the  point  of  view  of 
Roman  law,  see  Baron,  Pandekten,  p.  54.    Cf .  German  Civil  Code,  2 1-S9. 


QUASI-CORPORATIONS.  333 

Lambeth  Water- works  Company,  the  Civil  Service  Supply  chap.  xiv. 
Association  Limited,  or    the    Law  Guarantee  and  Trust 
Society  \ 

The  holders  for  the  time  being  of  certain  official  posi- '  Quasi- 
tions,  though  not  incorporated,  are  recognised  in  English  tioS/'^*' 
law  as  '  Quasi-Corporations.'  So  the  Churchwardens  of 
a  parish  and  their  successors  may  hold  goods  but  not  land, 
as  if  they  were  an  artificial  person;  and  larger  rights 
have  been  conferred  by  statute  upon  Guardians  of  the 
Poor,  and  Boards  of  Management  of  district  Schools  or 
Asylums,  The  term  is  also  applied  to  the  position  occu- 
pied under  certain  statutes  by  Banking  partnerships  and 
Commissioners  of  Sewers  ^  A  trade  union,  registered 
under  the  Acts  of  187 1  and  1876,  may,  it  is  now  settled,  be 
sued,  though  not  a  corporation,  in  its  registered  name,  as 
also  in  a  '  representative  action,'  and  its  general  funds  are 
liable  for  the  acts  of  its  officers,  done  in  the  course  of  their 
employment '.  ' 

The  legal  position  of  a  corporation  of  the  older  type  is  Older  cor- 
comparatively  simple.    It  exists  generally  for  some  purpose  ^^^  *°°^" 
of  public  utility,  and  its  members  have  no  defined  personal 
interest  in  the  property  which  belongs  to  it. 

The  most  complicated,  as  well  as    the    most  modern.  Trading 
branch  of  the  law  of  artificial  persons  relates  to  those  ^[^^^''^ 

*  Such  a  society  may  now  be  appointed  as  trustee,  but  not  as  executor, 
jointly  with  a  natural  person.  See  55  &  56  Vict.  c.  39;  62  &  63  Vict.  c.  20; 
Re  Martin  [1903]  20  T.  L.  Rep.  229;  Thomp>son  v.  Alexander  [1905] 
I  Ch.  229. 

*  There  are  symptoms  of  a  tendency  in  England  to  break  down  the 
distinction  between  corporations  and  societies  of  other  kinds.  Cf.  the 
permission  given,  by  the  Rules  of  the  Supreme  Court,  of  1883,  Order 
xvi.  1 4,  for  bringing  actions  in  the  name  of  and  against  an  unincorporated 
firm;  the  definition  of  a  'Body  unincorporated'  in  the  Customs  and 
Inland  Revenue  Act,  1S85;  and  the  attempt  made  in  the  same  year  to 
restrain  the  powers  of '  quasi-corporations '  in  dealing  with  their  property. 
On  'Halbcorporationen,'  see  Demburg,  Pand.  i.  p.  147. 

'  Taff  Vale  Ry.  Co.  v.  Amal.  Soc.  of  Ry.  Servants  [1901]  A.  C.  426. 
This  decision  is  threatened  by  a  Government  Bill  of  1906. 


334  PRIVATE    LAW:    ABNORMAL. 

CHAP.  XIV.  which  are  formed  for  purposes  of  trade.  They  are  a 
natural  accompaniment  of  the  extension  of  commerce.  An 
ordinary  partnership  lacks  the  coherence  which  is  required 
for  great  undertakings.  Its  partners  may  withdraw  from 
it,  taking  their  capital  with  them\  and  the  '  firm '  having 
as  such  no  legal  recognition,  a  contract  made  with  it 
could  be  sued  upon,  according  to  the  common  law  of 
England,  only  in  an  action  in  which  the  whole  list  of 
partners  were  made  plaintiffs  or  defendants^. 

In  order  to  remedy  the  first  of  these  inconveniences, 
partnerships  were  formed  upon  the  principle  of  a  joint- 
stock,  the  capital  invested  in  which  must  remain  at  a  fixed 
amount,  although  the  shares  into  which  it  is  divided  may 
pass  from  hand  to  hand.  This  device  did  not  however 
obviate  the  difficulty  in  suing,  nor  did  it  relieve  the 
partners,  past  and  present,  from  Uability  for  debts  in 
excess  of  their,  past  or  present,  shares  in  the  concern. 
In  the  interest  not  only  of  the  share-partners,  but  also  of 
the  public  with  which  they  had  dealings,  it  was  desirable 
to  discourage  the  formation  of  such  associations ;  and  the 
formation  of  joint-stock  partnerships,  except  such  as  were 
incorporated  by  royal  charter,  was  accordingly,  for  a  time, 
prohibited  in  England  by  the  '  Bubble  Act,'  6  Geo.  I.  c.  i8. 
An  incorporated  trading  company,  in  accordance  with  the 
ordinary  principles  regulating  artificial  persons,  consists  of 
a  definite  amount  of  capital  to  which  alone  creditors  of 
the  company  can  look  for  the  satisfaction  of  tlieir  demands, 
divided  into  shares  held  by  a  number  of  individuals  who, 
though  they  participate  in  the  profits  of  the  concern,  in 
proportion  to  the  number  of  shares  held  by  each,  incur  no 
personal  liability  in  respect  of  its  losses.  An  artificial  per- 
son of  this  sort  is  now  recognised  under  most  systems  of 
law.    It  can  be  formed,  as  a  rule,  only  with  the  consent  of 


*  See  now  Order  xvi.  14,  ahov?  nietitioned, 


LIABILITIES    OF   CORPORATIONS.  335 

the  sovereign  power  \  and  is  described  as  a  '  societe,'  or  chap.  xiv. 
'compagnie,'  'anonyme,'  an  ' Actiengesellschaft,'  or  'joint- 
stock  company  limited  ^'  A  less  pure  form  of  such  a 
corporation  is  a  company  the  shareholders  in  which 
incur  an  unlimited  personal  liability.  There  is  also  a 
form  resembling  a  partnership  'en  commandite,'  in  which 
the  liability  of  some  of  the  shareholders  is  limited  by 
their  shares,  while  that  of  others  is  unlimited. 

Subject  to  some  exceptions,  any  seven  partners  in 
a  trading  concern  may ',  and  partners  whose  number 
exceeds  twenty  must,  according  to  English  law,  become 
incorporated  by  registration  under  the  Companies  Acts, 
with  either  limited  or  unlimited  liability  as  they  may 
determine  at  the   time   of  incorporation. 

The  debts  of  an  incorporated  company  of  any  kind  are  Bank- 
payable  in  the   first  instance  only  out  of  the  corporate  ™^^3^^ 
funds.     Should  those  funds  prove  insufficient,  the  company  tions. 
becomes    bankrupt,  or,  as    it  is  variously  expressed,  'is 
wound  up,'  or  '  goes  into    liquidation.'     The  appropriate 
Court  investigates  its   affairs,  and  calls  upon  the  share- 
holders, in  the  case  of  a  limited  company,  for  any  balance 
which  may  be  unpaid  upon  their  shares,  and,  in  the  case 
of  an  unlimited  company,  for  any  further  sum  which  may 
be  required  from  their  private  fortunes.    Out  of  the  fund 


'  This  requirement  has  been  much  discussed  in  Germany,  and  has 
been  modified  in  the  later  issues  of  the  Handelsgesetzbuch ;  see  arts. 
215,  249. 

'  The  first  Act  for  limiting  the  liability  of  members  of  Joint-stock 
Companies  was  18  &  19  Vict.  c.  133,  passed  in  1855.  Speaking  of  the 
disappearance  of  the  old  Trade-guilds,  M.  de  Laveleye  says:  'Plus  de 
corporations  industrielles:  les  socidtfe  anonymes  qui  en  tiennent  lieu  ne 
sont  qu'un  moyen  d'associer  les  capitaux  et  non  des  hommes.'  Formes 
primitives  de  la  propriety,  p.  269. 

^  'One-man'  companies,  in  which  only  one  member  is  bona  fide 
responsible,  treated  as  fraudulent  in  Broderip  ?;.  Salomon  [1895]  2  Ch. 
(C.  A.)  323,  were  declared  unobjectionable  by  the  House  of  Lords,  in  the 
same  case  on  app>eal  under  the  name  of  Salomon  v.  Salomon  &  Co.  [1897] 
A.  C.  22.  On  'no  liability'  companies,  see  Journal  Comp.  Legisl.  ii. 
p.  160. 


336 


PRIVATE    LAW:    ABNORMAL. 


CHAP.  XIV.  thus  available,  the  claims  of  creditors  which  have  been 
satisfactorily  established  are  paid  either  in  full  or  rateably, 
as  the  case  may  be,  and  the  company  ceases  to  exist  \ 


Foreign 
corpora- 
tions. 


The  existence  of  a  foreign  corporation  will  generally  be 
recognised,  if  according  to  the  law  of  the  country  where  it 
was  created  it  has  attributes  similar  to  those  which  are 
assigned  to  corporations  by  the  law  of  the  country  in 
whose  court  it  is  plaintiff  or  defendant  ^ 


Proprie- 
tary pecu- 
liarities. 


The  chief  peculiarity  of  the  proprietary  rights  of  arti- 
ficial persons  relates  to  their  tenure  of  land.  The 
accumulation  of  estates  in  the  hands  of  religious  houses 
was  directly  opposed  to  the  interests  of  feudal  lords,  who 
accordingly  made  every  effort  in  England  to  get  rid  of 
such  tenure,  which  they  described  as  being  'in  niortua 
manu,'  by  a  long  series  of  enactments.  These  'Statutes 
of  Mortmain'  were  extended  in  time  to  the  prohibition 
of  the  alienation  of  land  to  lay  as  well  as  to  spiritual 
corporations ;  and  this  continues  to  be  the  rule  of  English 
law  to  the  present  day,  when  no  licence  in  mortmain  is 
granted  by  the  Crown,  subject  to  a  number  of  statutory 
exceptions  in  the  interests  of  religion,  charity,  or  other 
definite  public  object  ^  The  Wills  Act  of  Henry  VIII, 
now  repealed,  in  giving  a  general  power  of  devise,  contained 
an  exception  against  devises  to  'bodies  politic  and  cor- 
porate.' A  corporation  is  also  usually  restrained  from 
parting  with  its  landed  property,  and  even  from  leasing 


'  On  the  liability  of  members  of  a  dissolved  corporation  in  contract 
and  tort,  see  Yale  L.  J.,  p.  112,  citing  Curran  v.  Arkansas,  15  How.  304; 
Shaym  v.  Ev.  Post  Co.,  61  N.  E.  it 5. 

^  See  P.  Arminjon  on  '  La  nationalite  des  personnes  morales,'  Revue  de 
Droit  International,  2*  s6rie,  t.  iv.  p.  381.  A  foreign  corporation  has  been 
admitted  in  England  to  be  a  plaintiff  since  1 734,  to  be  a  defendant  since 
1858. 

'  The  enactments  on  this  subject  have  been  consolidated  in  the  Mort- 
main and  Charitable  Uses  Act,  1888,  51  &  52  Vict.  c.  42. 


POWERS   OF   CORPORATIONS.  337 

it  for  more  than  a  certain  number  of  years,  without  the  chap.  xiv. 
sanction  of  a  public  authority. 

The  form  in  which,  as  a  rule  \  an  artificial  person  Contrac- 
enters  into  a  contract  or  otherwise  performs  a  juristic  abilities, 
act  is,  according  to  English  law,  by  the  imposition  of 
its  seal,  which  has  been  described  as  '  the  hand  and  mouth 
of  a  corporation^';  unless,  in  the  case  of  a  trading  cor- 
poration, the  act  is  incidental  to  carrying  on  the  business 
for  which  it  is  incorporated,  and,  in  the  case  of  a  non- 
trading  corporation,  when  the  act  is  of  trivial  importance, 
or  of  urgent  necessity*. 

There  are  some  acts  of  which  an  artificial  person  is 
obviously  incapable,  and  there  are  others  which  the  law 
will  not  recognise  its  capacity  to  perform*.  It  has  long 
been  settled  in  England  that  un  assumption  on  the  part  of 
a  corporation  to  do  what  is  wholly  beyond  its  competence 
may  be  ground  for  a  forfeiture  of  the  charter  on  which  its 
existence  depends  ^  and  there  has  been  of  late  years  much 
discussion  as  to  the  classes  of  corporate  acts  which  the  law 
will  support  as  valid  with  reference  to  individual  cor- 
porators and  to  third  parties  respectively.  When  railway 
companies  were  first  created,  with  ParUamentary  powers 
of  a  kind  never  before  entrusted  to  similar  bodies,  it  soon 
became  necessary  to  determine  whether,  when  once  called 
into  existence,  they  were  to  be  held  capable  of  exercising, 
as  nearly  as  possible,  all  the  powers  of  a  natural  person, 
unless  expressly  prohibited  from  doing  so,  or  whether  their 


'I.e.  apart  from  statutory  provisions,  such  as  1 1  &  1 2  Vict.  c.  63.  s.  85. 
^  Gibson  v.  E.  I.  Co.,  5  Bing.  N.  C.  269. 

'  But  by  38  &  39  Vict.  c.  55.  s.  174,  a  contract  the  value  of  which 
exceeds  £50  made  by  an  urban  authority  must  be  under  seal. 

*  '  Municipes  per  se  nihil  possidere  possunt,  quia  universi  conscntire 
non  possunt.'  Dig.  xli.  2.  i.  22;  cf.  xxxviii.  3.  i.  On  the  liability  of  a 
corporation  for  wrongs,  e.  g.  for  trespass,  libel,  or  fraud,  see  Pollock,  Torts, 
ed.  vii.  pp.  58,  300.  It  is  liable  to  an  action  for  malicious  prosecution. 
Comford  v.  Carlton  Bank  [1899]  i  Q.  B.  392. 

*  R.  V.  Mayor  of  London,  i  Shower  274;  cf.  R.  v.  Eastern  Archipelago 
Co.,  2  E.  &  B.  856. 

HOLLAND  Z 


338  PRIVATE  LAW:    ABNORMAL. 

CHAP.  XIV.  acts  must  be  strictly  limited  to  the  furtherance  of  the 
purpose  for  which  they  had  been  incorporated. 

The  question  was  first  raised  in  1846,  with  reference  to 
the  right  of  a  railway  company  to  subsidise  a  harbour 
company,  and  Lord  Langdale,  in  deciding  against  such 
a  right,  laid  down  the  law  in  the  following  terms:  — 

'  Companies  of  this  kind,  possessing  most  extensive 
powers,  have  so  recently  been  introduced  into  this  country 
that  neither  the  legislature  nor  the  courts  of  law  have  yet 
been  able  to  understand  all  the  different  lights  in  which 
their  transactions  ought  properly  to  be  viewed.  ...  To 
look  upon  a  railway  company  in  the  light  of  a  common 
partnership,  and  as  subject  to  no  greater  vigilance  than 
common  partnerships  are,  would,  I  think,  be  greatly  to 
mistake  the  functions  which  they  perform  and  the  powers 
which  they  exercise  of  interference  not  only  with  the 
public  but  with  the  private  rights  of  all  individuals  in 
this  realm.  ...  I  am  clearly  of  opinion  that  the  powers 
which  are  given  by  an  Act  of  Parliament,  like  that  now 
in  question,  extend  no  further  than  is  expressly  stated  in 
the  Act,  or  is  necessarily  and  properly  required  for  carry- 
ing into  effect  the  undertaking  and  works  which  the  Act 
has  expressly  sanctioned*.' 

This  view,  though  it  has  sometimes  been  criticised,  seems 
now  to  be  settled  law.  In  a  later  case,  in  the  House  of 
Lords,  the  permission  which  the  Legislature  gives  to  the 
promoters  of  a  company  was  paraphrased  as  follows :  — 
'  You  may  meet  together  and  form  yourselves  into  a 
company,  but  in  doing  that  you  must  tell  all  who  may 
be  disposed  to  deal  with  you  the  objects  for  which  you 
have  been  associated.  Those  who  are  dealing  with  you 
will  trust  to  that  memorandum  of  association,  and  they 
will  see  that  you  have  the  power  of  carrying  on  business 
in  such  a  manner  as  it  specifies.     You  must  state  the 

*  Colman  v.  Eastern  Counties  Railway  Co.,  10  Beav.  13. 


POWERS   OF    CORPORATIONS.  339 

objects  for  which  you  are  associated,  so  that  the  persons  chap.  xiv. 
dealing  with  you  will   know  that  they  are  dealing  with 
persons  who  can  only  devote  their  means  to  a  given  class 
of  objects  V 

An  act  of  a  corporation  in  excess  of  its  powers,  with  Ultra  vires. 
reference  to  third  persons,  is  technically  said  to  be  ultra 
vires'^.,  and  is  void  even  if  unanimously  agreed  to  by  all 
the  corporators.  The  same  term  is  also,  but  less  properly, 
applied  to  a  resolution  of  a  majority  of  the  members  of 
a  corporation  which  being  beyond  the  powers  of  the 
corporation  will  not  bind  a  dissentient  minority  of  its 
members  ^ 

Such  artificial  persons  as  have  hitherto  been  described  Corpora- 
result  from  the  combination  of  a  number  of  natural  persons 
for  the  performance  of  a  common  function,  and  are  accord- 
ingly described  as  '  universitates  personarum,'  or,  in  English 
law,  as  '  corporations  aggregate.'  An  artificial  person  may, 
however,  also  exist  without  being  supported  by  any  natural 
person.  It  may  consist  merely  of  a  mass  of  property,  of 
rights  and  of  duties,  to  which  the  law  chooses  to  give  a 
fictitious  unity  by  treating  it  as  a  'universitas  bonorum.' 
The  most  familiar  example  is  a  'hereditas'  before  it  has 
been  accepted  by  the  heir,  which  in  Roman  law  is  treated 
as  capable  of  increase  and  diminution,  and  even  of  contract- 
ing by  means  of  a  slave  comprised  in  it,  as  if  it  were  a 
person  *. 

It  would  have  been  quite  possible  to  explain  in  the 
same  way  the  devolution  of  the  lands  of  the  Crown,  or  of 
a  bishopric,  or  of  a  rectory,  from  the  sovereign,  bishop, 
or  rector,  to  his  successor ;  but  English  law  has  preferred 

*  Per  Lord  Hatherley,  in  Riche  v.  The  Ashbury  Carriage  Co.,  L.  R. 
7  E.  &  I.,  App.  684. 

^  Perhaps  first  in  South  Yorkshire  Rail.  Co.  v.  Gt.  N.  Rail.  Co.,  9  Ex.  84 

(1853)- 

»  The  Earl  of  Shrewsbury  v.  N.  Stafif.  Rail.  Co.,  L.  R.  i  Eq.  593. 

*  Supra,  p.  94. 

Z2 


340  PRIVATE   LAW:    ABNORMAL. 

CHAP.  XIV.  to  introduce  for  this  purpose  the  fiction,  peculiar  to  itself, 
of  a  *  corporation  sole  \'  The  origin  of  such  a  corporation 
is  rarely  traceable;  but  the  Master  of  Pembroke  College 
and  the  Provost  of  Oriel  College,  Oxford,  were  respectively- 
made  corporations  sole  by  letters  patent  of  Queen  Anne  ^ 

Natural  II.  The  chief  varieties  of  status  among  natural  persons 

persons.  ■,  p  -,,.■,       r  ■,-,       • 

maybe  referred  to  the  following  causes:  i-  sex;  2.  mmor- 

ity;  3.  'patria  potestas'  and  'manus';  4.  coverture; 
5.  ceUbacy;  6.  mental  defect;  7.  bodily  defect;  8.  rank, 
caste,  and  oflBcial  position ;  9.  race  and  colour ;  i  o.  slavery ; 
II.  profession;  12.  civil  death;  13.  illegitimacy;  14.  heresy; 
15.  foreign  nationality;  16.  hostile  nationality.  AU  of 
the  facts  included  in  this  list,  which  might  be  extended, 
have  been  held,  at  one  time  or  another,  to  difiEerentiate 
the  legal  position  of  persons  affected  by  them  from  that 
of  persons  of  the  normal  type^.  It  may  be  worth  while 
to  give  a  few  illustrations  of  each  of  the  special  types 
of  status  thus  arising. 
Sex.  I.    The   disabilities    or    privileges   of   women,   as  such, 

must  be  looked  for  in  modern  times  rather  in  the  depart- 
ment of-  public  than  in  that  of  private  law.  It  must 
however  be  remembered  that  even  in  the  time  of  Gaius 
the  life-long  tutelage  of  women,  '  propter  animi  levitatem,' 
had  not  wholly  become  obsolete  \  and  that,  by  a  senatus- 
consultum  passed    in  the  reign  of    Claudius,  they  were 

*  A  corporation  sole,  though  it  may  hold  lands,  cannot  hold  goods  and 
chattels;  because,  says  Blackstone,  'such  moveable  property  is  liable  to 
be  lost  or  embezzled,  and  would  raise  a  multitude  of  disputes  between 
the  successor  and  the  executor,  which  the  law  is  careful  to  avoid.' 
Coram,  i.  p.  478.  On  the  limited  attributes  of  a  corporation  sole,  see 
Power  V.  Banks  [1901]  2  Ch.  487.  Prof.  Maitland,  in  the  L.  Q.  R.  xvi. 
p.  331,  attributes  the  term  to  Lord  Coke  (Co.  Litt.  250  a),  perhaps 
suggested  to  him  by  Broke 's  grand  Abridgment. 

^  See  12  Anne,  St.  2.  c.  6. 

'  In  the  Tagore  Lectures,  1883,  Lect.  xii.  Dr.  Jolly  gives  a  curious 
account  of  the  classes  of  persons  incapable  of  inheriting,  according  to 
Hindoo  law,  and  according  to  the  Sachsenspiegel. 

*  Inst.  i.  144. 


NATURAL   PERSONS.  341 

allowed  to  repudiate  any  liability  which  they  might  have  chap.  xiv. 
undertaken  as  sureties,  '  quum   eas  virilibus  officiis  fungi 
et  eius  generis  obligationibus  obstringi  non  sit  aequum'.' 

2.  Minors  are,  as  a  rule,  capable  of  holding  and  receiving  Minority, 
property,  and  liable  for  their  wrongful  acts,  but  incapable 
of  making  a  will,  or  of  entering  into  a  valid  contract 
without  the  approval  of  a  guardian  or  of  some  public 
authority  ^  The  exception  to  this  rule,  in  favour  of  up- 
holding an  infant's  contracts  for  necessaries,  is  obviously 
made  in  the  interest  of  the  infant  himself;  'ne  magno 
incommodo  affieiantur,  nemine  cum  his  contrahente,  et 
quodammodo  commercio  eis  interdicatur  ^'  Infants  are, 
however,  unless  under  the  age  of  consent,  which  differs 
under  different  systems,  not  incapacitated  from  entering 
into  the  contract  of  marriage*.  The  age  of  full  majority 
is  differently  fixed  under  different  systems,  and  it  may 
be  remarked  that  English  law,  in  dividing  human  life 
for  most  of  the  purposes  of  private  law  into  two 
periods  only,  that  which  precedes  and  that  which  fol- 
lows the  age  of  twenty-one,  has  departed  from  the 
theory  of  the  Roman  lawyers  and  their  followers.  This 
theory,  which  postpones  the  date  of  full  majority  till  the 
completion  of  the  twenty-fifth  year,  distinguishes  in  the 
preceding    period,  infancy,  proximity   to    infancy,  and  a 


•  Dig.  xvi.  I.  2. 

^  Cf.  the  Infant  Settlements  Act,  1855,  and  the  Infants  Relief 
Act,  1874.  The  disability  of  an  infant,  said  Lord  Mansfield,  is  to  be 
used '  as  a  shield  and  not  as  a  sword,'  Zouch  v.  Parsons,  3  Burr.  1804;  yet 
he  is  not  liable  in  tort  for  inducing  a  contract  by  falsely  representing 
himself  to  be  of  full  age,  Johnson  v.  Pie,  i  Sid.  258. 

^  Dig.  iv.  4.  Cf.  Barnes  v.  Toye,  13  Q.  B.  D.  410;  Johnstone  v.  Marks, 
19  Q.  B.  D.  509.  In  America  this  liability  is  treated  as '  quasi-contractual.' 
It  is  held  that  things  with  which  an  infant  is  already  sufficiently 
supplied,  although  purchased  from  a  tradesman  ignorant  of  the  fact,  are 
not  necessaries. 

*  Subject  to  certain  safeguards:  see  e.  g.  4  Geo.  IV.  c.  76;  Code  Civil, 
art.' 144- 1 60;  German  Civil  Code,  1303- 1308.  As  to  the  nature  of  the 
contract,  see  supra,  p.  239. 


342 


PRIVATE   LAW:    ABNORMAL. 


Patria 
potestas 


Coverture. 


CHAP.  XIV.  qualified  majority  attained  by  girls  at  the  age  of  twelve, 
and  by  boys  at  the  age  of  fourteen  years. 

3.  A  'Alius  familias'  could  hold  no  property,  except, 
in  later  times,  what  he  acquired  by  way  of  'peculiuni.' 
He  could  enter  into  most  contracts,  but  was  specially 
disabled,  by  the  senatusconsultum  Macedonianum,  from 
borrowing  money. 

4.  The  effect  of  marriage,  according  to  most  systems 
of  law,  was  to  produce  a  unity  between  the  husband  and 
wife,  rendering  each  of  them  incapable  of  suing  the  other  \ 
and  constituting  a  sort  of  partnership  between  them,  in 
which  the  husband  has  very  extensive  powers  over  the 
partnership  property,  while  the  wife  has  not  only  no  power 
of  aUenating  it,  but  is  also  incapable  of  making  a  will, 
or  of  entering  into  any  contract  on  her  own  account.  The 
common  law  of  England  exhibits  these  disabilities  of  the 
wife  in  their  strongest  form.  Of  the  several  systems 
between  which  French  law  allows  an  option  to  persons 
about  to  marry,  the  'regime  de  la  communaute,'  derived 


'  Such  is,  for  instance,  the  rule  of  the  English  Common  Law,  Co.  Litt. 
112a.  But  under  45  &  46  Vict.  c.  75.  a  married  woman,  subject  to  certain 
exceptions,  '  has  in  her  own  name  the  same  civil  remedies,  and  also  the 
same  remedies  and  redress  by  way  of  criminal  proceedings,  for  the  pro- 
tection and  security  of  her  own  separate  prop:rty,  as  if  such  property 
belonged  to  her  as  a  feme  sole,'  and  the  husband  may  similarly  take 
proceedings,  civil  or  criminal,  against  his  wife.  The  older  theory  of 
marriage  seems  still  to  predominate  in  the  L^nited  States.  It  has  indeed 
been  held  in  one  of  the  appellate  divisions  of  the  Court  of  New  York  that 
a  husband  may  bring  an  action  against  his  wife  to  recover  property 
belonging  to  him  which  has  been  forcibly  seized  and  carried  away  by 
her.  Berdell  v.  Parkhurst,  19  Hun,  358.  In  Schultz  v.  Schultz,  men- 
tioned in  a  former  edition  of  this  work,  from  information  kindly  supplied 
by  Mr.  Roger  Foster,  the  Supreme  Court  of  New  York  held  in  1882  that, 
in  the  absence  of  any  exception  as  to  the  husband,  an  Act  of  i860,  giving 
to  any  married  woman  a  right  of  action  in  her  own  name  against  any 
person  for  injury  to  her  person  or  character,  included  an  action  against 
her  husband,  and  had  thus  'routed  and  dispelled'  the  rules  of  the 
Common  Law,  which  'could  not  stand  the  scrutiny  and  analysis  of 
modem  civilisation.'  But  this  case  has  since  been  reversed  by  the  Court 
of  Appeals.    27  Hun,  26. 


NATURAL   PERSONS.  343 

from  the  '  coutumiers,'  is  least  favourable  to  the  wife,  chap.  xiv. 
giving,  as  it  does,  to  the  husband  the  absolute  control  of 
the  common  stock  * ;  while  the  '  regime  dotal,'  an  imitation 
of  the  dotal  system  of  Roman  law,  resembles  that  modern 
creation  of  the  English  Courts  of  equity,  a  marriage  settle- 
ment, in  which  the  wife's  *  separate  estate'  is  protected 
not  only  from  manipulation  by  the  husband,  but  also 
against  the  possibly  improvident  disposal  of  it  by  the 
wife  herself^.  The  legal  position  of  women  in  England 
has  been  much  modified  by  recent  legislation,  especially 
by  the  'Married  Women's  Property  Acts,'  1882'  and 
1893. 

5.  Unmarried  and  childless  persons  were  punished  under  Celibacy 
the  lex  lulia  et  Papia  Poppaea  by  forfeiture,  either  total 

or  partial,  of  the  'ius  capiendi  ex  testamento.' 

6.  A  lunatic,  though  capable  of  holding  property,  was  Mental 
in    Roman    law  incapable    of    any  legal    act.      '  Furiosus '^^^^*' 
nullum  negotium  gerere  potest,  quia  non  intelligit  quid 
agit\'    In  English  law  a  contract  made  by  him  is  not 

ipso  facto  void,  nor  is  it  even  voidable  by  him,  if  entered 
into  by  the  other  party  without  notice  of  the  lunacy^; 
which  was  perhaps  not  possible  in  case  of  a  *furiosus.' 
A  somewhat  similar  disability,  unknown  to  the  law  of 
England,  sometimes  attaches  to  persons  whom  a  compe- 
tent Court  has  declared  to  be  '  prodigals  V  Drunkenness 
cannot  be  said  to  create  a  status,  and  its  effects  in  avoid- 


'  Code  Civil,  art.  1399. 

'  lb.,  art.  1540. 

'  Repealing  the  Acts  of  1870  and  1874  on  the  same  subject. 

*  Inst.  iii.  19.  8.   Cf.  Dig.  xliv.  7.  i.  12;  1.  17.  5,  40,  124. 

*  Moulton  V.  Camroux,  4  Ex.  17;  Imperial  Loan  Co.  v.  Stone  [1892] 
I  Q.  B.  (C.  A.)  599.  ^y  the  Indian  Contract  Act  of  1872,  §§  11,  12, 
contracts  entered  into  during  lunacy  or  drunkenness  are  void.  Cf.  supra, 
p.  243;  Code  Civil,  arts  489-512;  Grerman  Civil  Code,  104,  114.  On  the 
tort  of  a  lunatic,  see  Dig.  ix.  2.  5.  2. 

'  Paulus,  Sent.  Rec.  iii.  4.  A.  7;  Dig.  xxvii.  10.  i  pr.;  Code  Civil,  art. 
513;  German  Civil  Code,  6.  For  a  study  in  comparative  law  upon  this 
subject,  see  C.  T.  H.  Wright  in  L.  Q.  R.  xvi.  p.  57. 


344 


PRIVATE   LAW:    ABNORMAL. 


Bodily 
defect. 


Office. 


CHAP.  XIV.  ing    contracts    may  best  be  compared  with    the    similar 
effects  of  duress. 

7.  Deaf  or  dumb  persons  were  unable  to  contract  by 
*  stipulatio.' 

8.  The  king,  according  to  the  maxim  of  English  law, 
can  do  no  wrong.  No  action  can  be  brought  against  him, 
nor  indeed  against  a  foreign  sovereign,  as  such,  or  his 
ambassador.  Certain  high  officials  are  exempted  from 
responsibility  for  the  acts  of  their  subordinates,  and  various 
public  functionaries  are  relieved  from  liability  by  the 
Statutes  of  Limitation  at  an  earlier  date  than  other 
people. 

9.  Most  of  the  disabilities  formerly  attaching  in  the 
States  of  the  American  Union  on  account  of  race  or  colour 
have  now  been  removed  ^ ;  but  only  white  men  can  become 
naturalized  in  the  United  States  ^ 

10.  It  may  well  be  questioned  whether  a  human  being 
who  is  incapable  of  marriage,  of  holding  property,  and 
of  contracting,  can  be  regarded  as  a  legal  person  at  all. 
This  was  the  position  of  a  slave  in  Roman  law,  which 
declares  that  'servile  caput  nullum  ius  habet,'  and  'in 
personam  servilem  nulla  cadit  obligation'  Nor  was  his 
private-law  position  affected,  as  Austin  seems  to  think*, 
by  the  constitutions  which  made  it  penal  for  his  master 
to  kill  or  grievously  ill-treat  him  without  cause.  These 
were  in  truth  analogous  to  the  provisions  in  modern 
systems  of  public  law  for  the  prevention  of  cruelty  to 
animals.      Since    however    a    slave    has,    even    for    legal 


C!olour 
and  race 


Slavery 


*  See  Stimson,  American  Statute-law,  art.  605.  Though  in  Oregon  and 
Nevada  no  Chinaman  or  Mongolian  can  be  employed  in  public  works,  or 
in  city  buildings  or  grounds. 

^  Cf.  re TakujiYamashita  (1902),  Wash.,  70  Pac.  Rep.,  and  other  cases 
cited  in  Michigan  L.  R.  i.  334. 

^  Dig.  1.  17.  22;  although  they  were  capable  of  incurring  an '  obligatio 
naturalis,'  Dig.  xliv.  7.  14.     Cf.  Inst.  iii.  20.  i. 

*  Vol.  ii.  p.  8. 


NATURAL   PERSONS.  345 

purjwses,  some  of  the  characteristics  of  a  human  being  \  it  chap,  xiv, 
is  necessary  to  point  out  that  his  status  is  in  private  law 
abnormal  to  the  extent  of  being  all  but  non-existent. 

11.  A  soldier    on    active    service    enjoys,  under    mostProfes- 
systems,  certain  exceptional  testamentary  privileges.    By^'°^' 
English  law  a  barrister  is  incapable  of  validly  contracting 

to  be  paid  for  his  professional  assistance ;  and  the  same 
disability  attaches  also  to  a  physician  ^ 

12.  The  effects  of  *  entering  into  reUgion,'  according  to  Civil 
English  law,  have  been  already  noticed.     Similar  effects  still 
follow  according  to  the  law  of  the  Hindus '.    A  somewhat 
similar  loss  of  legal  rights  resulted  also  from  attainder 
for  treason  or  felony  ^ 

13.  An  illegitimate  child  is  incapable  of  inheriting  'ablllegiti- 
intestato '  from  an  ascendant  or    collateral,  because    the 

law  regards  him  as  '  nuUius  Alius.'  Under  the  French  ^  and 
German®  Codes,  such  a  child  may  however  acquire  rights 
of  succession  if  solemnly  recognised  by  his  parents,  or 
one  of  them,  or  on  their  subsequent  marriage. 

14.  Religious     nonconformity    has    been    an    important  Noncon- 

formity, 
cause  of  civil  disability  from    the  date  of    the  imperial 

constitutions  which  are  collected  in  the  first  book  of  the 

Code  of  Justinian,  down  to  the  laws  by  which  a  Roman 

Catholic  was  disqualified  from  owning  a  horse  worth  more 

than  ;^5  in  Ireland,  or  which  rendered  Jews  incapable 

of  holding  land  in  Roumania. 

15.  The  gradual  extension  of  the  rights  of  '  connubium '  Alienage 
and '  commercium '  with  Roman  citizens  to  the  neighbouring 


*  '  Ipsi  servo  facta  iniuria  inulta  a  praetore  relinqui  non  debuit,  maxime 
si  verberibus  vel  quaestione  fieret,  banc  enim  et  servum  sentire  palam 
est.'    Dig.  xlvii.  10.  15.  35;  cf.  1.  17.  32. 

-  Supra,  p.  291. 

^  Supra,  p.  92;  Jolly,  Tagore  Lectures,  pp.  175,  278.  On  the  incapacity 
to  marry  produced  under  some  systems  by  holy  orders  or  vows  of  chas- 
tity, see  E.  Cimbali,  II  matrimonio  dello  straniero,  i.  pp.  174- 191. 

*  See  now  ^s  &  34  Vict.  c.  23.  *  Arts.  331-342,  756-766. 
'  .■^rts.  1 719-1 740. 


346  PRIVATE    LAW:    ABNORMAL. 

CHAP.  XIV.  Italian  tribes  is  a  well-known  chapter  of  the  history  of 
Roman  law.  The  Act  of  1870,  by  which  aliens  were 
allowed  to  own  freehold  land  in  the  United  Kingdom, 
marks  the  latest  step  in  the  assimilation  of  their  position, 
as  far  as  private  law  is  concerned,  with  that  of  British 
subjects. 

Hostility.  16.   The  contracts  of    an  alien   enemy  with  a   British 

subject  made  during  the  war  are  void,  and  his  right  to 
sue  upon  other  causes  of  action  is  suspended  during  the 
war. 

The  incapacity  by  English  law  of  the  witness  to  a  will 
to  take  a  legacy  under  it,  and  of  a  man  to  marry  the 
sister  of  his  deceased  wife ;  so  also  of  a  husband  or  wife, 
as  a  rule,  to  take  by  donation  one  from  the  other  in 
Roman  law,  are  instances  of  restrictions  placed  upon 
persons  occupying  for  the  time  being  certain  relations 
to  other  persons,  which  from  the  limited  extent  of  their 
operation  can  hardly  be  said  to  constitute  a  status. 


CHAPTER  XV. 

PRIVATE  law:    adjective. 

A  REMEDIAL  right  is  in  itself  a  mere  potentiality, 
deriving  all  its  value  from  the  support  which  it  can 
obtain  from  the  power  of  the  State.  The  mode  in  which 
that  support  may  be  secured,  in  order  to  the  realisation 
of  a  remedial  right,  is  prescribed  by  that  department  of 
law  which  has  been  called  '  adjective,'  because  it  exists 
only  for  the  sake  of  'substantive  law','  but  is  probably 
better  known  as  'Procedure^.'  In  the  exceptional  cases 
in  which  an  injured  party  is  allowed  to  redress  his  own 
wrong.  Adjective  law  points  out  the  limits  within  which 
such     self-help    is    permissible.    In    all     other    cases    it 


*  Supra,  pp.  86,  i6o.     See  Bentham,  Works,  ii.  p.  6. 

*  The  term  '  Procedure'  was,  till  the  passing  of  the  Common  Law  Pro- 
cedure Acts,  unfamiUar  in  English  law.  It  is  said  by  Lush,  L.  J.,  to 
denote,  like  'Practice,'  in  its  larger  sense,  'the  mode  of  proceeding  by 
which  a  legal  right  is  enforced,  as  distinguished  from  the  law  which  gives 
or  defines  the  right,  and  which  by  means  of  the  proceeding  the  Court  is 
to  administer;  the  machinery  as  distinguished  from  the  product.'  Poyser 
V.  Minors,  L.  R.  7Q.  B.  D.  329,  at  p.  333.  Procedure  is  by  many  German 
writers  very  inappropriately  called  '  formal  law.' 


348  PRIVATE    LAW:    ADJECTIVE. 

CHAP.  XV.  announces  what  steps  must  be  taken  in  order  duly  to 
set  in  motion  the  machinery  of  the  law-courts  for  the 
benefit  either  of  a  plaintiff  or  of  a  defendant. 

Rules  of  procedure  occupy  so  prominent  a  place  in  early 
society,  and  furnish  so  much  curious  illustration  of  the 
history  of  civiUsation,  that  they  have  attracted  a  share 
of  attention  perhaps  in  excess  of  their  real  importance. 
One  might  almost  suppose  from  the  language  of  some 
writers  that  an  elaborately  organised  Procedure  may 
precede  a  clear  recognition  of  the  rights  which  it  is  in- 
tended to  protect.  It  has  been  said  that  law  is  concerned 
more  with  remedies  than  with  rights.  It  would  be  as 
reasonable  to  say  that  a  field  consists  in  its  hedge  and 
ditch  rather  than  in  the  space  of  land  which  these  enclose. 
In  point  of  fact,  a  right  must  be  recognised  at  least  as 
soon  as,  if  not  before,  the  moment  when  it  is  fenced 
round  by  remedies.  The  true  interest  of  the  topic  of 
Procedure  is  derived,  first,  from  the  close  connection 
which  may  be  traced  between  its  earliest  forms  and 
the  anarchy  which  preceded  them  \  and  secondly,  from  the 
manner  in  which  the  tribunals  have  contrived,  from  time 
to  time,  to  effect  changes  in  the  substance  of  the  law  itself, 
under  cover  of  merely  modifying  the  methods  by  which 
it  is  enforced. 

Contents.  Adjective  law,  though  it  concerns  primarily  the  rights 

and  acts  of  private  litigants,  touches  closely  on  topics, 
such  as  the  organisation  of  Courts  and  the  duties  of 
judges  and  sheriffs,  which  belong  to  public  law.  It  com- 
prises the  rules  for  (i)  selecting  the  jurisdiction  which  has 

'  See,  for  instance,  Sir  H.  Maine's  Early  History  of  Institutions,  lect.  ix. 
and  X.,  and  his  interesting  remarks,  in  Early  Law  and  Custom,  p.  364, 
on  the  prominent  position  occupied  by  Procedure  in  the  XII  Tables,  as 
contrasted  with  its  relegation  to  the  last  place  in  the  Institutional  writers 
of  the  Empire.  'Trial  by  battle'  was  a  late  survival  in  England  of 
regulated  self-help.  After  the  last  reported  case  of  the  kind,  Ashford 
V.  Thornton,  i  B.  «&  Aid.  405,  it  was  abolished  by  59  Greo.  III.  c.  46. 


CLASSIFICATION   OF   TOPICS.  349 

cognisance  of  the  matter  in  question;  (ii)  ascertaining  chap.  xv. 
the  Court  which  is  appropriate  for  the  decision  of  the 
matter ;  (iii)  setting  in  motion  the  machinery  of  the  Court 
so  as  to  procure  the  decision ;  and  (iv)  setting  in  motion 
the  physical  force  by  which  the  judgment  of  the  Court 
is,  in  the  last  resort,  to  be  rendered  effectual  \  These 
rules,  like  those  of  substantive  law,  are  primarily  appU- 
cable  to  persons  of  the  normal  type,  and  only  with  certain 
modifications  to  abnormal  persons. 

i.  It  is  by  no  means  the  case  that  a  remedial  right  Jurisdic- 
is  capable  of  being  enforced  everywhere.  An  English 
Court  will  for  instance  entertain  an  action  for  breach 
of  contract  quite  irrespectively  of  the  place  where  it  was 
made,  or  broken,  or  in  which  the  parties  reside,  but 
will  hardly  hear  an  application  for  a  divorce  unless  the 
parties  are  domiciled  in  the  country,  nor  will  it  try 
an  action  for  trespass  to  land  unless  the  land  is  within 
the  realm. 

ii.  It  is  also  necessary  that  proceedings  be  taken  inCoxirt. 
the  appropriate  Court.  Thus  in  England,  even  after  the 
changes  introduced  by  the  Judicature  Acts,  it  is  still 
necessary  that  an  administration  action  should  be  com- 
menced in  the  Chancery  division,  and  a  salvage  action 
in  the  Admiralty  division,  of  the  High  Court  of  Justice. 
There  are  also  matters  which  can  only  be  tried  in  one 
or  other  of  the  divisions  of  that  Court,  and  not  in  any 
inferior  tribimal. 

iii.  The  choice  of    the    appropriate    Court  is  a  simple  The  action, 
matter  compared  with    rightly  setting    its  machinery  in 
motion.    In  this  operation,  which  has  been  described  by 
such  phrases   as   'legis    actio,'    ' I'instance,'    'la  demande 

*  'Quia  iurisdictio  sine  modica  coercitione  nulla  est.'  Dig.  i.  21.  5. 


350 


PRIVATE    LAW:     ADJECTIVE. 


CHAP.  XV.  judiciaire,'  '  action,'  *  suit,' '  Verfahren,'  the  following  stages 
are  usually  distinguishable. 

Citation.  i.  The  summons,    or    citation,    by  which   the    plaintiff 

brings  the  defendant  into  Court. 

Pleadings.  2.  The  pleadings, '  I'instruction  de  la  cause,'  by  which  the 
plaintiff  informs  the  Court  and  the  defendant  of  the  nature 
of  his  claim,  and  the  defendant  states  the  nature  of  his 
defence.  The  defence  may  be  to  the  effect  that,  even 
granting  the  truth  of  the  plaintiff's  allegations  of  fact, 
they  are  in  law  no  ground  for  his  claim  against  the 
defendant,  or  it  may  consist  in  denying  altogether  the 
facts  alleged  by  the  plaintiff,  or  in  admitting  them,  but 
alleging  other  facts,  such  as  a  release,  or  the  Statutes  of 
Limitation,  which  neutralise  the  effect  which  they  would 
otherwise  have  had.  A  defence  of  the  last-mentioned  kind 
was  called  in  Roman  law  *an  exceptio,'  and  in  England 
a  plea  in  'confession  and  avoidance \'  A  plea  may  be 
either  'dilatory,'  showing  that  the  right  of  action  is  not 
yet  available,  or  'peremptory,'  showing  that  it  is  non- 
existent. The  exchange  of  pleadings  continues  till  it 
is  clear  how  much  is  admitted  and  how  much  is  denied 
on  either  side,  and  therefore  what  is  precisely  the  dispute 
between  the  parties.  This  process  may  be  carried  on 
orally  in  the  presence  of  the  Court,  as  under  the  code  of 
Civil  Procedure  for  the  German  Empire  ^  or  in  writing 
or  print,  as  in  England.  When  well  managed  it  gives 
much  scope  for    dexterous    intellectual    fencing,  but  its 


•  '  Comparatae  sunt  autem  exceptiones  defendendorum  eorum  gratia 
cum  quibus  agitur:  saepe  enim  accidit  ut,  licet  ipsa  actio  qua  actor 
experitur  iusta  sit,  tamen  iniqua  sit  adversus  eum  cum  quo  agitur.' 
Inst.  iv.  13. 

*  Civilprozessordnimg  fiir  das  Deutsche  Reich,  §119.  But  in '  Anwalts- 
prozesse,'  i.  e.  when  professional  representatives  must  be  employed,  dis- 
advantages as  to  costs,  and  otherwise,  follow,  unless  'die  miindliche 
Verhandlung'  is  'durch  Schriftsatze  vorbereitet,'  §  120:  and  copies  of 
these  writings  are  to  be  filed  in  Court,  §  124.  Cf.  the  recommendations 
of  the  Lord  Chancellor's  Committee  on  Procedure,  1881, 


TRIAL.  351 

tendency  to  over-subtlety  has  been  a  fertile  theme  for  legal   chap.  xv. 
critics  from  the  time  of  Gaius  to  that  of  Bentham\ 

3.  The  trial,  hearing,  or  'audience,'  at  which  each  of  Trial. 
the  parties  endeavours  to  establish  to  the  satisfaction 
of  the  Court  the  truth  of  the  view  maintained  by 
him  of  the  question  at  issue,  whether  it  be  one  of  law 
or  one  of  fact ;  if  of  law,  by  citing  authorities,  if  of  fact, 
by  adducing  proofs.  Proofs  may  be  either  documentary  or 
oral,  and  certain  rules  exist  in  most  systems  with  refer- 
ence to  their  admissibility,  amounting  in  some  systems  to 
a  body  of  law  of  no  little  complexity.  Such  a  'law  of  Evidence, 
evidence'  is  more  necessary  when  questions  are  tried 
by  a  jury  than  when  they  are  decided  by  a  professionally 
trained  judge  ^.  Its  objects  are,  on  the  one  hand,  to  limit 
the  field  of  enquiry,  by  the  doctrine  that  certain  classes  of 
facts  are  already  within  the  'judicial  notice'  of  the  Courts, 
and  by  '  presumptions '  by  which  certain  propositions  are 
to  be  assumed  to  be  sufficiently  proved  when  certain  other 
propositions  have  been  established^;  and  on  the  other 
hand,  to  exclude  certain  kinds  of  evidence  as  having  too 
remote  a  bearing  on  the  issue,  or  as  incapable  of  being 
satisfactorily  tested,    or    as    coming    from    a    suspicious 


•  The  '  legis  actiones,' says  Gaius,  gradually  fell  into  disrepute,  'nam- 
que  ex  nimia  subtilitate  veterum,  qui  tunc  iura  condiderunt,  eo  res 
perducta  est,  ut  vel  qui  minimum  errasset  litem  perderet,'  iv.  30:  and 
he  gives  the  following  instance,  '  cum  qui  de  vitibus  succisis  ita  egisset 
ut  in  actione  vites  nominaret,  responsum  est  eum  rem  perdidisse,  quia 
debuisset  arbores  nominare,  eo  quod  lex  xii  tabularum,  ex  qua  de  vitibus 
succisis  actio  competeret,  generaliter  de  arboribus  succisis  loqueretur,' 
ih.  II.  Cf.  Cod.  ii.  58.  i.  A  constitution  of  Justin  limits  the  duration  of 
an  action  to  three  years,  'ne  lites  fiant  paene  immortales,  et  vitae 
hominum  modum  excedant.'  Cod.  iii.  i.  13.  See  also  Bentham,  Works, 
ii.  p.  14. 

'  For  an  admirable  sketch  of  the  development  of  this  branch  of  law, 
sae  Prof.  Thayer,  A  preliminary  treatise  on  Evidence  at  the  Common 
Law,  1898. 

^  E.g.  the 'Presumption  of  life  limitation  (Scotland)  Act,' 1891.  When 
the  death  of  several  persons  is  occasioned  by  the  same  cause,  English  law 
admits  no  presumption  as  to  survivorship  grounded  upon  age  or  sex. 
Wing  V.  Angrave,  8  H.  L.  Ca.,  183;  so  also  the  German  Civil  Code,  20. 


352 


PRIVATE    LAW:    ADJECTIVE. 


CHAP.  XV.  quarter*.  For  the  last-mentioned  reason  certr.in  classes 
of  persons,  or  persons  occupying  certain  relative  positions, 
are  rendered  incapable  of  being  witnesses.  There  are  also 
rules  regulating  the  right  of  the  parties  to  appear  in 
person,  or  to  be  represented  by  advocates,  and  the  order 
in  which  the  parties  or  their  advocates  may  tender  their 
evidence  and  address  the  Court. 

Judgment.  4.  The  judgment,  by  which  the  Court  decides  the 
question  in  litigation.  It  may  relate  to  a  right  to 
property,  or  an  ascertainment '  or  a  dissolution  ^  of  status, 
or  an  affirmation  of  the  due  execution  of  a  legal  act, 
or  an  award  of  damages  for  a  wrong,  or  an  order  for 
the  specific  performance  *  or  non-performance  of  a  certain 
act^ 

Costs.  The    judgment    usually  charges  upon    the   losing  side 

the  'costs'  to  which  the  other  party  has  been  put  in 
consequence  of  the  suit". 

Appeal.  5.  The  procedure  on  Appeal,  when  an  Appeal  is  possible 

and  is  resorted  to  by  either  party '. 


*  The  German  Civilprozessordnung  is  opposed  to  Presumptions  and 
other  so-called  'artificial'  proofs,  §  259.  The  Einfiihrungsgesetz,  §  14, 
repeals  laws  restricting  modes  of  proof.  But  see  the  new  Civil  Code,  14. 
The  theory  of  legal  proof  is  no  doubt  largely  due  to  the  canonists,  but  it 
can  hardly  be  said  to  have  been  wholly  vmknown  to  Roman  law.  See 
the  opinion  of  Favorinus,  apud  Gell.  Noctes  A.  xiv.  2. 

^  E.  g.  on  a  declaration  of  nullity,  or  under  the  Legitimacy  Declaration 
Act,  21  &  22  Vict.  c.  93. 

^  On  a  decree  of  divorce.  *  Cf.  supra,  p.  316. 

^  As  to  '  tierce  opposition '  when  the  judgment  affects  the  rights  of  one 
who  is  not  a  party  to  the  action,  see  Code  de  ProcMure  Civile,  art.  474. 

'  Cf.  supra,  p.  182.  Justinian's  legislation  upon  the  subject  is  con- 
tained in  Cod.  iii.  i .  1 3.  Costs  were  in  England  eo  nomine  unknown  to  the 
common  law,  but  were  given  to  the  plaintiff  by  6  Ed.  I.  c.  i,  to  the 
defendant  by  23  H.  VIII.  c.  15.  At  one  time  also  the  judgment  con- 
tained a  direction  '  that  the  plaintiff  (or  the  defendant)  be  ameiced,  or  in 
mercy,  "in  misericordia  domini  regis,"  for  his  false  claim  (or,  for  his 
wilful  delay  of  justice).' 

^  The  Sachsenspiegel  gave  a  right  of  appeal  to  a  dissentient  member  of 
the  Court,  as  having  an  interest  on  public  grounds  that  the  law  should  be 
correctly  stated. 


EXECUTION.  353 

iv.  Execution,  whereby  a  successful  party  calls  upon  chap.  xv. 
the  officers  of  the  Court,  or  other  appropriate  State  Execution, 
functionaries,  to  use  such  force,  either  against  pei^on 
or  property,  as  may  be  necessary  in  order  to  carry  the 
judgment  into  effect.  It  may  be  remarked  that  a 
successful  defendant,  except  for  the  recovery  of  his  costs, 
has  obviously  no  need  of  execution,  and  that  execution 
of  a  judgment  in  a  civil  cause  is  not  ex.  officio^  i.  e. 
does  not  take  place  except  on  the  demand  of  a  litigant 
party.  Certain  articles,  the  property  of  the  losing  party, 
are  frequently  protected  against  execution  \  The  con- 
stitutions of  nineteen  States  of  the  United  States  provide 
that  the  privilege  of  a  debtor  to  enjoy  the  necessary 
comforts  of  life  shall  be  recognised  by  wholesome  laws 
exempting  a  reasonable  amount  of  his  property  from 
execution.  Sixteen  States  have  now  'Homestead  laws,' 
exempting  a  homestead  for  the  shelter  and  protection 
of  the  family  from  execution  or  judicial  sale  for  debt, 
unless  both  husband  and  wife  have  expressly  joined  in 
mortgaging,  or  otherwise  subjecting  it  to  the  claims  of 
creditors  ^. 

Besides  the  original  parties  to  an  action,  whose  interests  Extra- 
are  directly  involved  in  it,  other  persons  may  be  brought  parties 
into  it  by  the  authority  of  the  Court.    In  some  actions, 
which  involve  wider  interests  than  those  of  the  parties, 
notice  must  be  given  to  a  State  functionary,  who  may 
then  intervene  in  the  proceedings  on  public  grounds  ^ 


•  So  in  certain  actions  a  '  beneficium  competentiae '  was  enjoyed  by 
defendants,  so  that  'non  totum  quod  habent  extorquendum  est,  sed  et 
ipsarum  ratio  habenda  est,  ne  egeant.'  Dig.  1.  17.  173.  So  English  law 
exempts  from  seizure  wearing  apparel,  bedding,  and  implements  of 
a  man's  trade  to  the  value  of  £5. 

^  See  Stimson,  American  Statute-law,  §§  81,  83.  The  first '  Homestead 
law'  was  passed  in  1836,  by  the  Republic  of  Texas.  On  analogous  recent 
legislation  in  British  Colonies,  see  E.  Manson  in  the  Journal  of  Comp. 
Legislation,  N.  S.,  No.  iii.  p.  441. 

'  See  Code  de  Procedure  Civile,  P.  I.  liv.  ii.  tit.  4,  De  la  Communication 

HOLLAND  A  a 


354  PRIVATE    LAW:    ADJECTIVE. 

CHAP.  XV.       A  maximum   interval   may  be  fixed  between  each  step 
Default.        jjj    y^jj    action,    on    pain    of    a    decision    being    given    'in 
default'  against  the   party  who    neglects  to  proceed  in 
due  course. 

Abnormal  Adjective,  no  less  than  Substantive,  law  may  be  normal 
Law.  '  ^  o^  abnormal:  that  is  to  say,  artificial  persons,  and  such 
varieties  of  natural  persons  as  those  considered  in  the  pre- 
ceding chapter,  are  in  a  different  position  with  reference 
to  suing  and  being  sued  from  that  occupied  by  ordinary 
individuals.  The  modifications  of  the  rules  of  procedure 
which  take  place  with  a  view  to  abnormal  personality 
are  of  a  somewhat  technical  character ;  and  it  may 
be  sufficient  here  to  refer,  by  way  of  illustration,  to  the 
rules  of  English  law,  that  an  alien  enemy  has  no 
'persona  standi  in  iudicio,'  that  a  peer  is  privileged 
from  arrest,  as  is  a  clergyman  on  his  way  to  or  from 
the  performance  of  divine  service,  that  if  one  of  the 
parties  in  an  action  for  a  divorce  be  lunatic,  the  suit 
may  proceed  notwithstanding  his,  or  her,  inability  to 
plead;  and  to  the  recently  abrogated  rule  that  a  husband 
must  be  joined  in  an  action  against  his  wife. 

au  Ministfere  Public;  Gerichtsverfassungsgesetz  fur  das  Deutsche  Reich, 
I  142;  Civilprozessordnung,  §  568;  and,  as  to  the  King's  Proctor, 
23  &  24  Vict.  c.  144.  s.  5. 


CHAPTER  XVI. 


PUBLIC    LAW. 

*  I  coNSTDER,'  says  Lord  Bacon,  '  that  it  is  a  true  and  The  char- 

jj...  ,,  -J.'  17-  J'  •  acteristics 

received  division  of  law  into  tus  publicum    and  lus  pn-  ^j  public 

vatum^  the  one  being    the    sinews  of    property,  and  the^^^- 

other  of  government  \'    The  nature  of  the  distinction  has 

been    already  explained  ^     In    private   law   the   State   is 

indeed   present,  but  it  is   present  only  as   arbiter  of  the 

rights  and  duties  which  exist  between  one  of  its  subjects 

and  another.    In  public  law  the  State  is  not  only  arbiter, 

but  is  also  one  of  the  parties  interested.    The  rights  and 

duties  with  which  it  deals  concern  itself  of  the  one  part 

and  its  subjects  of  the  other  part,  and  this  union  in  one 

personality  of  the  attributes  of  judge  and  party  has  given 

rise  to  the  view,  from  which  we  have  already  expressed 

our  dissent,  that  the   State,  or,  as  it  is   expressed,  the 

Sovereign,  not  only  has  no  duties,  but  also  has  no  rights 

properly  so  called  ^ 

The  conception  of  public,  as  opposed  to  private,  law  is 


*  Preparation  towards  the  Union  of  Laws,  Works,  vii.  731. 
'  Supra,  p.  121.  '  Supra,  p.  125. 

A  a  2 


356  PUBLIC   LAW. 

CHAP.  XVI.  due  to  the  Romans,  who  say  of  it '  ad  statum  rei  Romanae 
spectat,'  *in  sacris,  in  sacerdotibus,  in  magistratibus  con- 
sistitV  and,  as  a  matter  of  fact,  include  in  it  also  the  law 
of  crime.  With  this  extended  meaning  the  phrase  has 
been  accepted,  and  is  in  daily  use,  in  the  legal  speculation 
and  practice  of  the  continent  of  Europe,  but  unfortunately 
finds  no  equivalent  in  our  insular  legal  terminology  ^ 
An  English  lawyer,  when  he  had  been  made  to  under- 
stand the  idea,  which  to  his  foreign  colleagues  is  at  once 
rudimentary  and  indispensable,  would  probably  come  to 
the  conclusion  that  it  covers  the  topics  which  are  recog- 
nised in  this  country  as  '  Constitutional  law,' '  Ecclesiastical 
law,'  *  Revenue  law,'  and  'Pleas  of  the  Crown.'  It  is 
therefore  somewhat  remarkable  that  perhaps  the  most 
masterly  summary  of  the  nature  of  public  law  is  to  be 
found  in  the  writings  of  an  English  Lord  Chancellor.  '  Jus 
Privatum,'  says  Lord  Bacon, '  sub  tutela  Juris  PubUci  latet. 
Lex  enim  cavet  civibus,  magistratus  legibus,  magistratuum 
autem  authoritas  pendet  ex  maiestate  imperii  et  fabrica 
poUtiae  et  legibus  fundamentalibus.  Quare  si  ex  ilia  parte 
sanitas  fuerit  et  recta  constitutio,  leges  erunt  in  bono  usu, 
sin  minus,  parum  in  iis  praesidii  erit.  Neque  tamen  Jus 
Publicum  ad  hoc  tantum  spectat  ut  addatur  tanquam 
custos  luri  Privato,  ne  illud  violetur  atque  ut  cessent 
iniuriae,  sed  extenditur  etiam  ad  religionem  et  arma,  et 
disciplinam  et  ornamenta  et  opes,  denique  ad  omnia  circa 
Bene  Esse  civitatis^' 

Its  parts.  The  distinctions  in  accordance  with  which  the  field  of 

private    law  has  been  divided  and    subdivided  apply  to 

*  Dig.  i.  I.  I.  2.  'Publicum  ius  est  quod  ad  statum  rei  Romanae 
spectat,  privatum  quod  ad  singulorum  utilitatem.  Sunt  enim  quaedam 
publice  utilia,  quaedam  privatim.' 

*  The  two  departments  were  similarly  confused  in  Old  German  law. 
Cf.  Bluntschli,  Deutsche  Staatslehre,  p.  7. 

'  Exemplum  tractatus  de  lustitia  imiversali,  Works,  i.  p.  804;  cf.  ib. 
vii.  p.  732. 


DIVISIONS   OF.  357 

public  law  also.    In  the  latter  as  well   as  in   the  former  chap.  xvi. 

we  may  detect  a  'substantive'  body  of  principles  adopted 

for  the   general  welfare,  and   'adjective'  rules  by  which 

those  principles  are  safe-guarded  and  reduced  to  practice. 

The   distinction   between  rights  'in  rem'  and   rights  'in 

personam '  is  as  clearly  traceable  in  one  department  of  law 

as  in  the  other,  as  is  also  that  between  rights  '  antecedent ' 

and  'remedial,'  and    that   between   rights   'normal'  and 

'  abnormal.' 

The  last-mentioned  distinction  is  indeed  so  strongly 
marked  in  public  law  as  to  have  led  to  a  serious  miscon- 
ception as  to  the  nature  of  the  whole  subject.  The  reason 
is  not  far  to  seek.  Of  the  two  persons  who  are  constituent 
elements  of  every  right,  one  must  always  in  public  law 
be  the  State,  acting  of  course  through  its  various  function- 
aries. Now  a  State  is  an  artificial  person,  the  often 
highly  complex  construction  of  which  introduces  numerous 
complexities  into  the  rights  of  which  it  is  one  of  the 
factors.  Mr.  Austin  was  so  struck  with  this  characteristic 
of  public  law  as  to  be  led  to  identify  the  whole  subject 
with  those  rules  which  define  the  different  kinds  of 
political  status,  and  so  to  deny  its  separate  existence,  and 
to  regard  it  merely  as  one  branch  of  what  he  calls  the 
law  of  persons,  but  we  prefer  to  describe  as  the  law  of 
abnormal  rights.  He  is  thus  a  revolter,  in  the  unwonted 
company  of  Blackstone,  against  what,  according  to  the 
Roman  and  modern  continental  systems,  is  the  primary 
division  of  the  field  of  law.  Instead  of  attempting  a 
detailed  disproof  of  a  heresy  which  perhaps  sufficiently 
refutes  itself,  by  leading  its  apologist  to  conclusions  which 
he  evidently  feels  to  be  inconvenient,  it  may  perhaps  be 
sufficient  to  confront  it  with  what  we  conceive  to  be  the 
true  doctrine,  namely  that  among  the  distinctions  which 
are  traceable  in  public  as  well  as  in  private  law,  that 
between  normal  and  abnormal  rights  is  among  the  most 
conspicuous. 


358 


PUBLIC   LAW. 


CHAP.    XVI. 

Classifica- 
tion of  its 
topics. 


Relations 
to  the 
classifica- 
tion of 
Erivate 
iw. 


It  by  no  means  follows  from  the  same  principles  of 
division  being  applicable  both  in  public  and  in  private 
law,  that  they  are  most  conveniently  apphed  in  the  same 
order  in  the  two  departments,  or  that  their  application 
produces  in  each  case  similar  results. 

The  correlation  of  the  parts  of  public  law  one  to  another 
is  indeed  far  from  being  settled.  It  never  attracted  the 
attention  of  the  Roman  lawyers,  and  has  been  very 
variously,  and  somewhat  loosely,  treated  by  the  jurists 
of  modern  Europe.  The  subject  is,  indeed,  one  which  lends 
itself  but  reluctantly  to  systematic  exposition,  and  it  is 
with  some  hesitation  that  we  propose  to  consider  it  under 
the  heads  of — I.  Constitutional  law;  II.  Administrative 
law ;  III.  Criminal  law ;  IV.  Criminal  procedure ;  V.  the 
law  of  the  State  considered  in  its  quasi-private  personahty ; 
VI.  the  procedure  relating  to  the  State  as  so  considered  \ 

The  first  four  of  these  heads  contain  the  topics  which 
are  most  properly  comprised  in  Public  law.  It  would  be 
possible,  though  not  convenient,  to  arrange  these  topics  in 
accordance  with  the  classification  adopted  in  Private  law. 
If  the  attempt  were  made,  antecedent  rights  would  have 
to  be  sought  for  in  Constitutional,  in  Administrative  and 
also  in  Criminal  law ;  remedial  rights  in  Criminal  and  also 
in  Administrative  law;  adjective  law  mainly  in  Criminal 
procedure ;  and  abnormal  law  mainly  in  Constitutional 
and  Criminal  law.  The  importance  of  the  last-mentioned 
topic  is  due,  as  already  stated,  to  the  fact  that,  whereas  in 
Private  law  both  of  the  persons  concerned  with  any  given 
right  are,  as  a  rule,  perfectly  similar,  and  of  that  normal 
type  which  requires  no  special  investigation,  the  persons 
concerned  in  a  Public-law  right  are  necessarily  dissimilar, 
one  of  them  being  always  that  highly  abnormal  person 
which  is  called  a   State.    It   may  also  be  remarked  that 


'  It  may  be  worth  while  to  remark  that  what  the  Germans  call '  Staats- 
recht  *  deals  with  the  topics  into  which  we  have  analysed  '  Public  law,' 
omitting  Nos.  Ill  and  IV. 


CONSTITUTIONAL   LAW.  359 

the  majority  of  the  rights  dealt  with  in  Public  law  are  chap.  xvi. 
permanently  enjoyed  by  the  State  as  the  person  of  in- 
herence against  its  subjects  as  the  persons  of  incidence.  In 
Private  law,  on  the  contrary,  he  who  is  to-day  the  person 
of  inherence  with  reference  to  a  right  of  any  given  descrip- 
tion may  very  probably  become  to-morrow  the  person  of 
incidence  with  reference  to  a  precisely  similar  right,  and 
vice  versa. 

The  rules  contained  under  the  fifth  and  sixth  heads  of 
our  arrangement  are  rules  of  PubUc  law,  because  they 
relate  to  the  rights  of  the  State;  but  they  approximate 
closely  to  rules  of  Private  law,  because  they  relate  to  the 
State  merely  as  the  greatest  of  artificial  persons,  and  not 
as  governing,  administering,  or  preserving  order. 

It  is  beyond  the  scope  of  the  present  treatise  to  attempt 
more  than  a  very  brief  indication  of  the  topics  included 
under  each  of  the  six  heads  under  which  we  have  dis- 
tributed the  matter  of  Public  law. 

I.  The  primary   function  of    Constitutional   law   is   toConstitu- 
ascertain  the  political  centre  of  gravity  of  any  given  State,  l^^ 
It  announces  in  what  portion  of  the  whole  is  to  be  found 
the  'internal  sovereignty,'  'suprema  potestas,'   'Staatsge- 
walt,'  or,  as  Aristotle  called  it,  to  Kvpiov  t^s  TroAews*.    In 
other  words,  it  defines  the  form  of  government. 

The  sovereign  part  of  the  State,  as  thus  ascertained,  is  The 
omnipotent.  Since  it  is  the  source  of  all  law,  its  acts  can  p^^gr. 
never  be  illegal.  As  little  can  they  be,  strictly  speaking, 
unconstitutional.  The  latter  term  is  properly  applied  only 
to  characterise  an  act  of  an  inferior  political  authority  in 
excess  of  its  delegated  powers.  Thus  a  statute  passed  by 
the  Congress  of  the  United  States  may  be  unconstitutional, 

■  Polit.  iii.  lO.  I.  Uo\iT(ia  niv  yap  iari  Ta|is  ra.7s  ■w6\(ffiv  v  irepl  rckj  apxa.s, 
rlva  Tp6irov  v(vift.r\VTai,  KoL  ri  rh  Kvpiov  t^s  -KoKirflas  koX  tI  rh  rf\os  l»«£«mjj 
Trjs  Koivwvias  (ffriy.      lb.  iv,  I.  lO.     Cf.  supra,  p.  47. 


36o 


PUBLIC   LAW. 


CHAP.  XVI.  because  the  sovereign  people  has  empowered  the  President 
and  Congress  to  legislate  only  subject  to  certain  reserva- 
tions, and  has  entrusted  to  a  Supreme  Court  the  duty  of 
deciding  whether  any  given  enactment  is  or  is  not  made 
in  pursuance  of  the  restricted  powers  thus  delegated ;  but 
the  authority  of  the  King,  Lords,  and  Commons  in 
England  is  fettered  by  no  such  Umitation.  An  act  is, 
strictly  speaking,  never  unconstitutional  unless  it  is  also 
illegal,  and  can  never  be  either  if  it  is  the  act  of  the 
sovereign  power.  Only  in  a  lax  sense  of  the  term  is  it 
permissible  to  describe  as  unconstitutional  acts  of  the 
sovereign  power  which  run  counter  to  the  expectations  and 
political  usages  of  the  inhabitants  of  a  country. 

Its  factors.  The  definition  of  the  sovereign  power  in  a  state 
necessarily  leads  to  the  consideration  of  its  component 
parts.  The  distinction  between  legislative,  executive,  and 
judicial  functions  is  as  old  as  Aristotle  ^ ;  but  it  was  left 
for  Montesquieu  to  point  out  the  importance  of  these 
several  functions  being  discharged  by  distinct  groups  of 
persons  I  With  reference  to  all  these  questions  con- 
.  stitutional  law  enters  into  minute  detail.  It  prescribes 
the  order  of  succession  to  the  throne;  or,  in  a  Republic, 
the  mode  of  electing  a  President.  It  provides  for  the 
continuity  of  the  executive  power  ^.  It  enumerates  the 
*  prerogatives '  of  the  king,  or  other  chief  magistrate.  It 
regulates  the  composition  of  the  Council  of  State,  and 
of  the  Upper  and  Lower  Houses  of  the  Assembly,  when 
the  Assembly  is  thus  divided ;  the  mode  in  which  a  seat 
is  acquired  in  the  Upper  House,  whether  by  succession, 
nomination,  election,  or  tenure  of  office;  the  mode  of 
electing  the  members  of  the  house  of  representatives ;  the 
powers  and  privileges  of  the  assembly  as  a  whole,  and 
of  the  individuals  who  compose  it ;  and  the  machinery  of 


*  Polit.  iv.  II.  I.  ^  Esprit,  xi.  c.  6. 

*  With  the  maxim  '  the  King  never  dies,'  cf .  '  Sedes  Apostolica  non 
moritur,'  c.  5.  de  rescr.  in  Sext.  i.  3. 


CONSTITUTIONAL   LAW.  361 

law-making.  It  deals  also  with  the  ministers,  their  re-  chap,  xvi 
sponsibility  and  their  respective  spheres  of  action;  the 
government  offices  and  their  organisation;  the  armed 
forces  of  the  State,  their  control  and  the  mode  in  which 
they  are  recruited;  the  relation,  if  any,  between  Church 
and  State  ^ ;  the  judges  and  their  immunities ;  their  power, 
if  any,  of  disallowing  as  unconstitutional  the  acts  of 
non-sovereign  legislative  bodies;  local  self-government; 
the  relations  between  the  mother-country  and  its  colonies 
and  dependencies.  It  describes  the  portions  of  the  earth's 
surface  over  which  the  sovereignty  of  the  State  extends, 
and  defines  the  persons  who  are  subject  to  its  authority. 
It  comprises  therefore  rules  for  the  ascertainment  of 
nationality^,  and  for  regulating  the  acquisition  of  a  new 
nationality  by  '  naturaUsation.'  It  declares  the  rights  of 
the  State  over  its  subjects  in  respect  of  their  liabihty  to 
military  conscription,  to  service  as  jurymen,  and  otherwise. 
It  declares,  on  the  other  hand,  the  rights  of  the  subjects 
to  be  assisted  and  protected  by  the  State,  and  of  that 
narrower  class  of  subjects  which  enjoys  full  civic  rights 
to  hold  public  offices  and  to  elect  their  representatives  to 
the  Assembly,  or  Parliament,  of  the  Nation.  Among  the 
circumstances  which  may  disqualify  a  subject  for  citizenship 
are  minority,  infamy,  heresy,  colour,  lack  of  settled  abode, 
insufficiency  of  income,  and  also  sex,  for  in  spite  of  the 
tendency  of  modern  thought  upon  this  subject,  there  are 
still  those  who  say, '  die  Politik  ist  Sache  des  Mannes  V 
A  constitution  has  been  well  defined  as  '  I'ensemble  des 


*  Ecclesiastical  is  sometimes  co-ordinated  with  Public  and  Private  law. 
'  Nam  et  genera  [legum]  sunt  tria,  sacri,  publici,  privati  iuris.'  Quint,  ii.  4. 
Cf .  '  lus  triplex  tabulae  quod  ter  sanxere  quatemae, 

Sacrum,  privatum,  populi  commune  quod  usquam  est.' 

Auson.  Id.  xi.  61. 
'  M.  Cogordan,  La  Nationality,  p.  2,  points  out  the  recent  origin  of  this 
term,  and  that  it  appears  in  the  Dictionnaire  de  I'Acad^mie  fran§aise  for 
the  first  time  in  the  edition  of  1835. 

'  Bluntschli,  Die  Lehre  vom  modemen  Staat,  i.  p.  246. 


362  PUBLIC   LAW. 

CHAP.  XVI.  institutions  et  des  lois  fondamentales,  destinees  a  regie  r 
Taction  de  I'administration  et  de  tous  les  citoyens '.'  It 
is  often,  as  in  England,  an  unwritten  body  of  custom, 
though,  since  the  assertion  of  the  '  rights  of  man '  wliich 
preceded  the  French  Revolution,  the  written  enactment 
of  such  fundamental  principles  has  been  not  uncommon, 
as  well  on  the  European  continent  as  in  America.  A 
written  constitution  usually  contains  provisions  which 
make  innovation  less  easy  than  in  the  case  of  customary 
constitutions,  such  as  that  of  England,  any  part  of  which 
may  be  modified  by  an  ordinary  Act  of  Parliament  ^ 

The  contents  of  the  constitutional  branch  of  law  may  be 
illustrated  by  reference  to  a  piece  of  proposed  legislation, 
which  enters  far  more  into  detail  than  is  usual  in  such 
undertakings.  The  draft  Political  Code  of  the  State  of 
New  York  purports  to  be  divided  into  four  parts,  whereof 
'  The  first  declares  what  persons  compose  the  people  of  the 
State,  and  the  political  rights  and  duties  of  all  persons 
subject  to  its  jurisdiction :  the  second  defines  the  territory 
of  the  State  and  its  civil  divisions :  the  third  relates  to 
the  general  government  of  the  State,  the  functions  of  its 
public  officers,  its  public  ways,  its  general  police  and  civil 
policy :  the  fourth  relates  to  the  local  government  of 
counties,  cities,  towns,  and  villages.'  The  Code  begins 
with  an  announcement  that  '  the  sovereignty  of  the  State 
resides  in  the  people  thereof,'  and  the  people  is  said  to 
consist  —  'i.  of  citizens  who  are  electors;  2.  of  citizens 
not  electors.' 

The  constitutions  of  federal  governments,  such  as  those 
of  the  United  States  or  Switzerland,  contain  provisions 
upon  many  topics  of    private    law,  such  as   respect  for 

•  Ahrens,  Cours,  iii.  p.  380. 

*  lb.,  p.  381.  Mr.  Bryce  has  suggested  the  use  of  the  terms  'rigid' 
and  'flexible'  to  express  this  distinction.  See  now  his  American 
Commonwealth,  i.  pp.  475-478.  See  also  Professor  Dicey's  instructive 
and  ingenious  applications  of  the  distinction,  Law  of  the  Constitution, 
ed.  vi.  pp.  122,  416. 


ADMINISTRATIVE   LAW.  363 

property  and  contracts.  The  reason  being,  as  has  well  chap.  xvi. 
been  stated,  that  '  certain  principles  of  policy  or  justice 
must  be  enforced  upon  the  whole  confederated  body  as 
well  as  upon  the  separate  parts  thereof,  and  the  very 
inflexibility  of  the  constitution  tempts  legislators  to  place 
among  constitutional  articles  maxims  which  (though  not 
in  their  nature  constitutional)  have  special  claims  upon 
respect  and  forbearance  \' 

II.  The  various  organs  of  the  sovereign  power  areAdmini- 
described  by  constitutional  law  as  at  rest;  but  it  is  also  Law '^^ 
necessary  that  they  should  be  considered  as  in  motion, 
and  that  the  manner  of  their  activity  should  be  prescribed 
in  detail.  The  branch  of  the  law  which  does  this  is 
called  Administrative  law,  '  Verwaltungsrecht,'  in  the 
widest  sense  of  the  term.  In  this  sense  Administration 
has  been  defined  as  '  the  exercise  of  political  powers  within 
the  limits  of  the  constitution^,'  as  'the  total  concrete  and 
manifoldly  changing  activity  of  the  State  in  particular 
cases  V  and  as  '  the  functions,  or  the  activity,  of  the 
sovereign  power*.' 

Different  views  are  taken  as  to  the  topics  which  are  Its  widest 
included  under  this  very  wide  conception.  It  may  fairly 
be  said  to  include  the  making  and  promulgation  of  laws; 
the  action  of  the  government  in  guiding  the  State  in 
its  foreign  relations ;  the  administration  of  justice ;  the 
management  of  the  property  and  business  transactions  of 
the  State;  and  the  working  in  detail,  by  means  of  sub- 
ordinates entrusted  with  a  certain  amount  of  discretion, 
of  the  complex  machinery  by  which  the  State  provides  at 
once  for  its  own  existence  and  for  the  general  welfare. 

'  Dicey,  u.  s.,  p.  143.  Cf.  Bryce,  u.  s.,  ii.  p.  41.  It  is  thus  that  questions 
such  as  those  raised  in  the  Dartmouth  College  case,  supra,  p.  248  n.,  are 
brought  before  the  Supreme  Court. 

^  Ahrens,  Cours,  ii.  p.  380. 

'  Bluntschli,  u.  s.,  iii.  p.  465. 
-    *  Putter,  apud  Holtzendorff,  System,  p.  695. 


364 


PUBLIC   LAW. 


CHAP.    XVI. 

Its  more 

specific 

sense. 


Ite 

functions. 


Administrative  law,  as  thus  conceived  of,  is  not  a 
coherent  body  of  doctrine,  and  it  is  convenient  so  to 
specialise  the  use  of  the  term  as  to  apply  it  to  some  only 
of  the  above-mentioned  topics.  Of  the  rest,  legislation 
and  executive  government  are  more  fitly  treated  of  under 
those  chapters  of  Constitutional  law  which  deal  with  the 
legislature  and  the  sovereign ;  the  rules  for  the  administra- 
tion of  justice  must  be  sought,  so  far  as  they  provide 
for  the  organisation  of  the  courts,  under  Constitutional 
law,  so  far  as  they  govern  civil  procedure,  under  Adjective 
Private  law,  and  so  far  as  they  govern  crimes  and  criminal 
procedure,  under  those  heads  of  Public  law,  namely  the 
third  and  fourth,  which  we  devote  specifically  to  those 
topics;  while  the  law  relating  to  the  State  property  and 
its  business  transactions  would  be  found  in  the  fifth  and 
sixth  of  our  heads  of  public  law. 

Administrative  law,  in  the  more  specific  sense  of  the  term, 
deals  with  such  topics  as  the  following :  — 


Revenue 


i.  The  collection  of  the  Revenue. 


Armed 
forces. 


ii.  The  recruitment,  equipment,  and  control  of  the  Army 
and  Navy ;   Ship-buUding  and  Fortifications. 


Depend- 
encies. 

£tat  civil. 


iii.  The  government  of  Colonies  and  Dependencies. 

iv.  The  collection  of  statistics ;  the  registration  of  births, 
deaths,  and  marriages  ('etat  civil')*  and  of  conveyances 
and  mortgages  of  land ;  the  custody  of  wills  ;  the  naturali- 
sation of  aliens ;   the  granting  of  charters  to  corporations. 


Material 
welfare. 


v.  The  promotion  of  the  material  welfare  of  all  the 
individuals  of  whom  the  State  is  composed,  either  by 
the  prevention  of  evil  or  the  production  of  good.    Among 


*  In  France  this  is  dealt  with  as  a  matter  of  private  law,  in  the  Code 
CiviL 


ADMINISTRATIVE   LAW.  365 

the  operations  carried  on  by  State  functionaries  for  this  chap,  xvi 
purpose  are  the  following:  — 

1.  Measures  of  sanitary  precaution,  such  as  the  organisa- 
tion of  drainage,  the  inspection  and  even  destruction  of 
unhealthy  dwellings,  the  regulation  of  dangerous  under- 
takings, such  as  mining,  and  of  unwholesome  trades ;  the 
inspection  of  ships;  the  prevention  of  the  employment  of 
women  or  children  in  certain  occupations,  or  for  more  than 
a  certain  number  of  hours ^;  quarantine;  vaccination;  the 
supply  of  pure  water;  the  prevention  of  the  adulteration 
of  articles  of  food  and  drink  ^ 

2.  The  regular  working  of  a  poor-law,  or  the  exceptional 
working  of  relief  works  and  doles  in  time  of  famine. 

3.  The  visitation  of  lunatic  asylums  and  nunneries. 

4-  The  protection  of  the  coinage  and  the  inspection  of 
weights  and  measures. 

5.  The  supervision  of  professions  and  trades. 

6.  The  collection  of  information  as  to  foreign  commerce ; 
the  supervision  of  banks,  insurance  societies,  and  companies 
generally. 

7.  The  supervision  of  roads,  railways,  canals,  telegraphs, 
and  posts. 

8.  The  maintenance  of  lighthouses,  harbours,  sea-walls, 
and  dykes. 

9.  The  preservation  of  order,  the  detection  of  crime,  and 
the  management  of  prisons. 


*  There  is  a  difference  of  judicial  opinion  in  America  whether  enact- 
ments to  this  effect  are  unconstitutional,  as  an  interference  with  freedom 
of  contract,  e.  g.  Tilt  v.  People,  27  Chi.  L.  News,  270,  or  are  a  legitimate 
exertion  of  the  police  power  of  a  State,  e.  g.  Commonwealth  v.  Hamilton 
Manufacturing  Co.,  120  Mass.  385;  People  v.  Phyfe,  136  N.  Y.  554. 

^  Mr.  Traill  has  well  remarked  that  whenever  the  modem  state  has 
thought  fit  to  depart  from  the  system  of  laissez-faire,  it  has  not  been 
content  with  merely  commanding  the  citizen  to  do  certain  things,  but  has 
itself  seen  to  his  doing  them.  Central  Government,  p.  158.  For  a 
thoroughgoing  protest  against  government  inspection,  see  Mr.  Herbert 
Spencer's  The  Man  versus  the  State.  Cf.  Count  Tolstoy,  in  the  Fort- 
nightly Review,  1906,  pp.  i,  203. 


366 


PUBLIC   LAW. 


CHAP.    XVI. 

Moral 
welfare. 


vi.  The  promotion  of  the  mtellectual  and  moral  welfare 
of  the  public  generally,  by  such  measures  as:  — 

1.  The  organisation  of  schools,  and  the  sustentation  of 
museums  and  libraries. 

2.  The  prevention  of  Sunday  trading,  the  supervision  of 
places  of  amusement,  and  the  licensing  of  plays  \ 


Self- 
govern- 
ment. 


Admini- 
strative 
jurisdic- 
tion. 


It  must  be  remembered  that  much  of  this  work,  except 
in  very  highly  centralised  States,  is  entrusted  to  local 
authorities,  often  to  the  same  authorities  who  also  exercise 
an  inferior  criminal  jurisdiction. 

Disputed  questions  of  administrative  law,  or  cases  of 
refusal  to  comply  with  its  rules,  are  in  England  usually 
in  minor  matters  brought  before  a  justice  of  the  peace. 
More  serious  questions  are  tried  in  the  superior  courts. 
Although  military  and  ecclesiastical  discipline  is  enforced 
by  Courts  Martial  and  Courts  Christian,  no  person  is  by 
virtue  of  his  official  position  exempted  from  the  jurisdiction 
of  the  Common  law^  But  it  is  maintained  by  some 
writers  that  questions  affecting  official  persons,  as  such, 
should  be  exclusively  decided  by  special  tribunals,  which 
accordingly  exist  in  many  countries,  with  a  hierarchical 
organisation.  An  appellate  '  Verwaltungsgerichtshof '  was, 
for  instance,  established  in  1863  for  the  Grand  Duchy 
of    Baden.     A  mixed   court  of  a  similar    character  was 


•  In  Germany  the  term  '  Polizei '  has  been  gradually  so  narrowed  as 
to  become  synonymous  with  '  innere  Verwaltung,'  and  is  subdivided  into 
'  Sicherheitspolizei '  and  '  Wohlfahrtspflege.'  See  Birkmeyer's  Encyclo- 
padie  der  Rechtswissenschaft,  p.  881.  Cf.  Holtzendorff,  System,  pp.  695, 
713,  Encycl.,  Bd.  iii.  pp.  415,  1114. 

*  '  Martial '  as  opposed  to '  military  law '  is  not  recognised  by  the  law  of 
England.  '  In  proclaiming  martial  law,  the  executive  authority  in  fact 
declares  itself  obliged,  for  the  protection  of  the  community,  to  neglect 
law,  trusting  to  the  Legislature  to  relieve  all  who,  in  obedience  to  the 
constituted  authority,  may  have  acted  in  defence  of  the  public  safety, 
from  the  consequences  of  having  acted  unlawfully.'  Duke  of  Newcastle's 
despatch,  1862,  cited  in  Clode,  Military  Forces,  ii.  p.  511.  Cf.  ex  parte 
Marias  [1902]  A.  C.  109,  and  the  present  author's  Laws  and  Customs  of 
War  on  Land,  issued  by  the  War  Office  in  1904,  arts.  8-18. 


CRIMINAL   LAW.  ^Sj 

created    in    1847   in    Prussia:    and  the  *Conseil    d'fitat'  chap.  xvi. 
performs  the  functions  of  such  a  court  in  France,  where 
questions   of  jurisdiction    between  the  ordinary  and  the 
administrative   Courts    are    decided  by   a  'Tribunal  des 
ConflitsV 

III.  Perhaps  the  most  important  of  the  functions  of  the  Criminal 
State  is  that  which  it  discharges  as  the  guardian  of  order ;  ^^^' 
preventing  and  punishing  all  injuries  to  itself,  and  all 
disobedience  to  the  rules  which  it  has  laid  down  for  the 
common  welfare.  In  defining  the  orbit  of  its  rights  in 
this  respect,  the  State  usually  proceeds  by  an  enumeration 
of  the  acts  which  infringe  upon  them,  coupled  with  an 
intimation  of  the  penalty  to  which  any  one  committing 
such  acts  will  be  liable.  The  branch  of  law  which  con- 
tains the  rules  upon  this  subject  is  accordingly  described 
as  '  Criminal  law,' '  Droit  penal,' '  Strafrecht.' 

It  is  comparatively  modern.  The  early  tendency  was  its 
to  punish  offences  against  the  sovereign  power  by  an  ex-™^^j^™ 
ceptional  executive  or  legislative  act,  and  to  treat  offences 
against  individuals,  even  when,  like  theft  and  homicide, 
they  were  a  serious  menace  to  the  general  welfare,  as 
merely  civil  injuries  to  be  compensated  for  by  damages. 
The  law  of  Rome  continued  to  the  last  to  treat  as  civil 
delicts  acts  which  would  now  be  regarded  exclusively 
as  crimes,  although,  by  a  long  course  of  unsystematic 
legislation,  it  had  also  attached  penal  consequences  to  some 


*  See  Professor  Dicey's  Law  of  the  Constitution,  ed.  vi.  pp.  322,  333/ 
485,  492.  Previously  to  the  appearance  of  this  work  next  to  nothing  had 
been  written  in  English  upon  the  extended  meaning  given  upon  the 
continent  to  'administrative  law.'  'Droit  administratif,'  which  plays 
so  important  a  part  in  the  law  of  France,  is  described  by  M.  Aucoc  as 
regulating  '  1°  la  constitution  et  les  rapports  des  organes  de  la  soci^t6 
charges  du  soin  des  int^rets  coUectifs  qui  font  I'objet  de  I'administration 
publique,  c'est-a-dire  des  differentes  personnifications  de  la  society,  dont 
I'etat  est  la  plus  importante;  2"  les  rapports  des  autorites  administratives 
avec  les  citoyens.'  On  the  inadequacy  of  this  description,  see,  however, 
Dicey,  u.  s.,  p.  325. 


368  PUBLIC   LAW. 

CHAP.  XVI.  of  them.  The  merely  practical  and  disorderly  character 
of  the  criminal  law  which  is  preserved,  for  instance,  in 
the  ninth  books  of  the  Codes  of  Theodosius  and  Justinian 
is  readily  explicable.  The  prerogative  of  punishment, 
exercised  in  early  times  by  the  king  and  the  'comitia 
centuriata '  and  in  later  times  shared  by  the  senate,  was 
usually  delegated  in  each  case  to  a  magistrate  or  body  of 
commissioners.  The  series  of  statutes  by  which  standing 
delegacies, '  quaestiones  perpetuae,'  were  instituted  for  the 
trial  of  offences  of  particular  kinds,  whenever  they  might 
be  committed,  commences  with  the  lex  Calpurnia,  b.  c.  149, 
and  was  continued  till  a  number  of  courses  of  conduct 
had  been  from  time  to  time  branded  as  criminal  \  The 
legislation    of   the    emperors,  though  it    superseded    the 

*  quaestiones '  by  the  simpler  procedure  of  the  'indicia 
extraordinaria,'  followed  the  lines  of  the  old  criminal 
statutes,  and  produced  a  body  of  rules  large  indeed  but 
formless,  and  owing  hardly  anything  to  the  great  men 
whose  wisdom  had  interpenetrated  every  doctrine  of  pri- 
vate law.  The  Teutonic  view  of  even  violent  wrongs 
resembled  the  early  Roman,  in  regarding  them  as  con- 
cerning almost  exclusively  the  person  injured,  to  whom 
therefore  atonement  was  to  be  made  by  way  of  damages, 

*  compositio.'  When  the  idea  began  to  be  clearly  grasped 
by  the  Germans  that  wrong-doing  might  injure  not  merely 
the  individual,  but  also  the  State  itself,  they  found  little 
assistance  towards  formulating  it  in  the  legal  system  to 
which  they  were  most  accustomed  to  turn  for  guidance. 
The  criminal  law  of  Rome,  deeply  tinged  as  it  was  with 
national  idiosyncrasies,  had  never  been  prepared  by  juristic 
exposition  for  more  general  usefulness.  Original  legisla- 
tion was  therefore  necessary,  and  the  first  essay  was  made 
in  the  'Constitutio  Criminalis  Carolina,'  of  the  Emperor 
Charles  V.  This  attempt  to  provide  a  criminal  law  for 
the  whole  Empire  lost  much  of  its  importance  from  the 

*  Cf.  Maine,  Ancient  Law,  ch.  v. 


CRIMINAL   LAW.  369 

compilation  of  national  codes  for  Bavaria,  Austria,  and  chap.  xvi. 
many  other  German  States  during  the  latter  half  of  the 
eighteenth  century,  but  was  the  forerunner  of  the  penal 
code  for  all  Germany,  '  Strafgesetzbuch  fiir  das  Deutsche 
Reich,'  which  came  into  operation  in  1872,  Of  the  other 
great  criminal  codes  now  in  force,  the  '  Code  penal '  became 
law  for  France  in  18 10,  and  has  been  imitated  by  the 
Latin  races  of  the  continent ;  while  the  penal  code  for 
British  India  which  was  drafted  in  1834  by  Lord  Macaulay 
was  promulgated  in  t86o.  In  the  meantime  the  whole 
theory  of  punishment  and  of  the  classification  of  offences 
has  been  thoroughly  discussed  by  such  men  as  Beccaria, 
Bentham,  Feuerbach,  Mittermaier,  and  Sir  J.  F.  Stephen  * ; 
and  the  criminal  branch  of  public  law  may  now  be  said 
to  be  divided  upon  recognised  principles,  and  to  possess 
a  terminology,  though  a  somewhat  loose  one,  of  its  own. 

It  is  divided  into  a  body  of  substantive  criminal  law 
and  a  body  of  criminal  procedure.  The  former,  with 
which  alone  we  are  concerned  at  present,  consists  of  two 
parts,  a  general  and  a  particular. 

i.  The  more  general  part  deals  with  such  topics  as  the  Its  general 
following :  the  nature  of  a  criminal  act  ^ ;  the  responsibility  ^* 
of  the  wrong-doer  on  the  ground  of  intention  or  negli- 
gence'; the  extent  to  which  an  artificial  person  may  be 
criminally  responsible  * ;  facts  which  negative  responsibility, 
such  as  tender  age,  compulsion,  idiocy,  lunacy,  or  drunken- 


*  The  last-named  in  his  General  View  of  the  Criminal  Law,  1863;  his 
Digests  of  Criminal  Law,  1877,  and  of  Criminal  Procedure,  1883;  his 
History  of  the  Criminal  Law,  1883;  and  his  Draft  Penal  Code,  which 
for  some  years  after  the  introduction  of  the  bill  in  1878  was  intermittently 
under  the  consideration  of  Parliament. 

*  '  Verbrechen  ist  die  von  Seiten  der  Gesetzgebung  constatirte  Gefahr- 
dung  der  Lebensbedingungen  der  Gesellschaft.'  Ihering,  Zweck,  i. 
p.  481. 

^  Cf.supra.pp.  104,107,145,  1 65;  Professor  Clark's  Analysis  of  Criminal 
Liability,  1880;  Holmes,  Common  Law,  pp.  47,  50,  75. 

*  Pearks,  &c.,  Ld.  v.  Ward  [1902]  2  K.  B.  i. 

HOLLAND  Bb 


370  PUBLIC    LAW. 

CHAP.  XVI.  ness  * ;  facts  which  may  justify  an  act  otherwise  criminal, 
such  as  the  consent  of  the  party  injured,  self-defence', 
lawful  authority,  or  the  public  welfare ;  how  far  omission 
is  equivalent  to  commission  ^ ;  the  persons  by  whom  criminal 
proceedings  may  be  instituted*;  the  list  of  punishments, 
such  as  death,  banishment,  imprisonment,  hard  labour, 
whipping,  loss  of  civil  rights,  liability  to  police  supervision, 
or  pecuniary  fine ;  the  period  of  time,  if  any,  which  will  be 
a  bar  to  criminal  prosecution  ^ ;  the  effect  of  a  plea  of  autre- 
fois acquit \  the  aiding  and  abetting  of  crime;  criminal 
attempts ;  cumulative  punishments.  Here  also  we  expect 
to  find  those  distinctions  between  different  grades  of  crime 
which  occur  in  almost  all  systems.  The  distinction  drawn 
by  English  law  between  '  felonies  '  and  '  misdemeanors '  is 
as  familiar  as  it  has  become  unmeaning.  The  French  Code 
opens  with  a  threefold  classification  of  wrongful  acts  into 
'  contraventions,'  '  delits,'  and  '  crimes,'  according  to  their 
being  respectively  punishable  by  '  peines  de  police,' '  peines 
correctionnelles,'  or  '  peines  afflictives  ou  infamantes  ' ;  and 
the  German  Code  draws  a  similar  distinction  between 
*  Uebertretung,' '  Vergehen,'  and  '  Verbrechen.'  The  Dutch 


*  The  new  anthropological  school  of  Italian  penalists  finds  in  the 
habitual  criminal  characteristics  which,  on  the  one  hand,  render  him 
irresponsible  for  his  acts,  and  on  the  other  hand  forbid  any  hope  of  his 
reclamation.    See  Lombroso,  Uomo  delinquente. 

^  'Vim  enim  vi  defendere  omncs  leges  omniaque  iura  permittunt.' 
Paulus,  Dig.  ix.  45.  4.  But  self-preservation  from  starvation  was  held 
no  defence  to  an  indictment  for  murder  in  the  Mignonette  case.  R.  v. 
Dudley,  14  Q.  B.  D.  273. 

'  E.  g.  under  sect.  43  of  the  Indian  Penal  Code. 

*  E.  g.  according  to  English  law,  not  by  a  wife  against  her  husband, 
nor  V.  v.,  except  for  injury  to  person  or  property;  not  therefore  for  libel, 
even  under  the  Married  Women's  Property  Act  of  1882,  sect.  16.  R.  v. 
Lord  Mayor  of  London,  16  Q.  B.  D.  776.     Cf.  supra,  p.  342  n. 

*  E.  g.  Code  d'Instruction Crim.,  art.  637;  Strafgesetzbuch,  art.  65.  For 
various  periods  of  Prescription  against  the  French  Government,  in  claims 
for  duty,  see  the  Loi  du  22  frimaire.  An  vii,  tit.  viii.  art.  61,  as  sub- 
sequently modified.  In  England  the  rule  'nullum  tempus  occurrit  regi' 
still  holds  good,  except  in  so  far  as  it  has  been  derogated  from  by  statute. 
See  such  statutes  in  Stephen,  Hist.  Crim.  Law,  ii.  p.  2. 


CRIMINAL   LAW.  371 

Code  of  1886  distinguishes  only  between  '  overtredingen '  chap.  xvi. 
and  'raisdryven';  the  Italian  Code  of  1889,  only  between 
'delitti'and  '  contra vvenzioni ' ;  the  Spanish  Code  of  1870, 
only  between  '  delitos '  and  '  faltas.'  The  criminal  Code 
Bill,  which  has  now  for  many  Sessions  awaited  the  leisure 
of  Parliament,  recognises  only  the  distinction  between 
indictable  offences  and  others,  expressly  abolishing  that 
between  felonies  and  misdemeanors. 

To  the  introductory  portion  of  a  Criminal  Code  belong 
also  provisions  as  to  the  relation  of  the  prosecution  of  an 
offence  to  the  recovery  in  a  civil  action  of  damages  for  the 
injury  caused  by  it  to  an  individual.  Such  is  the  rule 
long  alleged  to  exist  in  English  law  that  the  civil  remedy 
for  a  wrong  which  also  amounts  to  a  felony  is  suspended 
till  the  felon  has  been  convicted ',  and  such  is  the  article 
of  the  Code  penal  which  declares  that  'la  condamnation 
aux  peines  etablies  par  la  loi  est  toujours  prononcee  sans 
prejudice  des  restitutions  et  dommages-interets  qui  peuvent 
etre  dus  aux  parties  V 

ii.  The  special  part  contains  a  classification  of  criminal  Its  special 
acts,  and    specific    provisions   with   regard   to   the    penal  ^^ 
consequences  of  each. 

Such  acts  may  be,  in  the  first  place,  distinguished  into  The  list  of 

O  ff PTl  CPS 

offences  committed  directly  agamst  the  State,  or  community 
generally,  and  offences  the  mischief  of  which  is  primarily 
directed  against  particular  individuals. 

The  State,  or  community  generally,  is  injured  by :  —  Against 

I.  Acts  tending  to  interrupt  its  friendly  relations  with *^^  ^*^*®' 
foreign  powers;  whence  the  enactments  against  'foreign 
enlistment,'  and  against  libelling  or  compassing  the  death 
of  foreign  sovereigns  ^ 


>  Wellock  V.  Constantine,  2  H.  &  C.  146.   For  the  law  as  now  under- 
stood, see  supra,  p.  327. 

'  Art.  10;  cf.  Dig.  xlvii.  10.  7. 
^  Cf.  R.  V.  Peltier.  28  State  Trials,  529. 

Bb2 


372  -  PUBLIC   LAW. 

CHAP.  XVI.  2.  Acts  tending  to  the  subversion  of  the  government, 
such  as  assassination  of  princes,  rebellion,  and  similar  acts 
of  High  Treason. 

3.  Acts  tending  to  the  subversion  of  the  hberties  of  the 
subjects 

4.  Riots  and  other  offences  against  public  order  and 
tranquillity. 

5.  Abuse  of  official  position.    . 

6.  Resistance  or  disobedience  to  lawful  authority. 

»  7.  Obstruction  to  the  course  of  justice  by  perjury,  or 
falsification  of  documents,  or  rescue  or  harbouring  of 
offenders. 

8.  Maintenance  of  suits  S 

9.  Omission  to  give  information,  or  giving  false  informa- 
tion, as  to  births,  deaths,  and  similar  matters,  included  by 
the  French  under  the  phrase  '  etat  civil.' 

10.  Offences  relating  to  the  coinage,  or  to  weights  and 
measures. 

11.  Cruelty  to  animals;  though  it  may  be  doubted 
whether  this  is  forbidden  as  brutalising  to  the  public 
generally,  or  as  offensive  to  the  humane  sentiments  of 
individuals,  or  rather  as  implying  such  a  recognition  of 
quasi-rights  in  animals,  as  led  to  the  Roman  prohibition 
of  cruelty  to  slaves  ^ 


'  Cf.  Code  P^nal,  tit.  i.  ch.  ii. 

^  Cf.  Metropolitan  Bank  v.  Pooley,  10  App.  Ca.  210.  On  the  lawfulness 
of  maintenance  by  one  who  has  '  an  interest  in  the  thing  in  variance,' 
see  now  Alabaster  v.  Harness  [1895]  i  Q.  B.  (C.  A.)  339. 

'  So  Cicero:  'Ecquid  ergo  primum  mutis  tribuemus  beluis?  non  enim 
mediocres  viri,  sed  maximi  et  docti,  Pythagoras  et  Empedocles,  unam 
omnium  animantium  condicionem  iuris  esse  denuntiant,  clamantquc 
inexpiabiles  poenas  impendere  iis  a  quibus  violatum  sit  animal.  Scelus 
est  igitur  nocere  bestiae.'  De  Rep.  iii.  11.  Cf.  Ed.  Engelhardt,  De 
I'animalit^  et  de  son  droit,  1900.  Legislation  upon  the  subject  begins  in 
England  with  3  G.  4.  c.  71,  the  earlier  Acts  laying  much  stress  upon 
the  demoralising  effect  of  the  keeping  of  houses  for  the  baiting  of  dogs, 
bulls,  and  bears.  The  subject  is  now  regulated  by  12  &  13  Vict.  c.  92, 
47  j&  48  Vict.  c.  43,  63  &  64  Vict.  c.  S3,  and  4  Ed.  7,  c.  4.    Cf.  supra,  p.  344. 


CRIMINAL   LAW.  373 

12.  Acts  injurious  to  public  morality,  such  as  bigamy.  chap.  xvi. 

13.  Suicide  \ 

14.  Acts  injurious  to  the  public  health,  such  as  neglect 
of  vaccination,  and  various  forms  of  nuisance. 

Many  wrongful  acts,  affecting  primarily  individuals,  and  against  in- 
therefore  giving  rise  to  remedial    rights  in  private  law, 
are  also  so  harmful  to  society  as  to  be  punished  by  it  as 
crimes  ^.    They  may  perhaps  be  classified  under  the  follow- 
ing heads : — 

1.  Violence  to  the  person,  in  its  various  kinds  and 
degrees  of  homicide,  wounding,  rape,  assault,  or  imprison- 
ment. 

2.  Defamation  of  character  (by  English  law  only  when 
in  the  form  of  a  libel)  ^  sometimes  justifiable  when  shown 
to  be  true  and  for  the  public  benefit  *. 


For  a  flat  denial  to  animals  of  even  moral  rights,  see  Moral  Philosophy, 
by  Joseph  Rickaby,  S.  J.,  Pt.  ii.  c.  5.  §  2:  'Brute  beasts,  not  having 
understanding,  and  therefore  not  being  persons,  cannot  have  any  rights- 
.  .  .  We  have  no  duties  of  charity,  nor  duties  of  any  kind  to  the  lower 
animals,  as  neither  to  stocks  and  stones.  .  .  .  Still  we  have  duties  about 
stones,  not  to  fling  them  through  our  neighbours '  windows,  and  we  have 
duties  about  brute  beasts.'  Pope  Pius  V,  in  1567,  prohibited  'spectacula 
ubi  Tauri  et  Ferae  in  circo  vel  foro  agitantur,'  speaking  of  them  as 
'  a  pietate  et  caritate  Christiana  aliena,  cruenta  turpiaque  daemonum  et 
non  hominum  spectacula,'  but  apparently  mainly  on  account  of  the 
'hominum  mortes,  membrorum  mutilationes,  animarumque  pericula' 
which  frequently  result  from  them.  BuUarium  Rom.  (op.  C.  Cocquelines), 
t.  iv.  pars  ii.  p.  402.  The  Cour  de  Cassation  recently  held  that  bull-fights 
are  prohibited  by  the  law  of  1850,  which  was  intended  not  merely 
to  protect  animals  against  cruelty,  but  also  to  prevent  the  demoralising 
effect  of  such  cruelty  upon  spectators.  Gazette  des  Tribunaux,  Jan.  11, 
1900. 

*  See  E.  Manson  on  '  Suicide  as  a  Crime,'  in  Journal  Comp.  Legisl., 
N.  S.,  No.  iii.  p.  310. 

^  Supra,  p.  319. 

^  Cf.  supra,  p.  178.  A  libel  is  criminal  on  account  of  its  supposed 
tendency  to  arouse  angry  passions,  R.  v.  Holbrook,  4  Q.  B.  D.  46.  The 
obsolete  offence  of '  Scandalum  magnatum '  might  however,  be  committed 
by  spoken  words.    See  supra,  p.  178,  n.  i. 

*  It  would  seem  that  no  proceedings  can  be  taken  for  libel  on  a  deceased 
person.    See  the  charge  of  Stephen,  J.,  at  the  Cardiff  Assizes,  in  I^,  v. 


374  PUBLIC   LAW. 

CHAP.  xvr.       3.  Acts  offensive  to  religious  feeling  *. 

4.  Offences  against  family  rights,  such  as  abduction  of 
children,  or,  in  some  systems,  adultery^. 

5.  Offences  against  possession  and  ownership,  such  as 
theft  and  arson,  or  other  wilful  destruction  of  property. 

6.  Certain  breaches  of  contract,  of  a  kind  likely  to  cause 
social  inconvenience,  or  for  which  a  civil  remedy  would  be 
valueless  \ 

7.  Fraudulent  misrepresentations  and  swindling*. 

It  may  be  remarked  that  offences  against  the  property 
of  the  State  are  often  assimilated  to  offences  against  that 
of  individuals ;  and,  in  many  instances,  particular  kinds 
of  State  property  are,  for  the  purposes  of  the  criminal  law, 
vested  by  statute  in  certain  State  functionaries  ^ 


Ensor,  10  Feb.,  1887,  relying  on  R.  v.  Topham,  4  East,  126,  as  against 
a  dictum  in  5  Rep.  125.  Aliter  under  the  Indian  Penal  Code,  art.  499, 
expl.  I.    Cf.  Dalloz,  s.  v.  '  Presse-outrage,'  art.  11 28. 

'  On  the  question  whether  this,  or  mere  repugnancy  to  the  Christian 
religion,  be  the  test  of  a  blasphemous  libel,  see  the  summing  up  of  Lord 
Coleridge,  C.  J.,  in  R.  v.  Ramsay  &  Foote,  15  Cox,  C.  C.  231,  and  Sir  J.  F. 
Stephen's  History  of  the  Criminal  Law,  ii.  p.  475. 

*  E.g.'  La femme  convaincue  d'adultfere  subira  la peine'de  I'emprisonne- 
ment  pendant  trois  mois  au  moins  et  deux  ans  au  plus.'  Code  P^nal, 
art.  337.  But  proceedings  can  only  be  taken  by  the  husband,  and  he  can 
terminate  the  imprisonment  by  taking  her  home.  Cf.  Strafgesetzbuch, 
art.  171;  Indian  Penal  Code,  art.  497.  On  the  action  of  the  Canon  law 
in  England,  see  Redfem  v.  Redfem  [1891]  P.  (C.  A.)  139.  The  Penal  Code 
of  Indore  punishes  as  adultery  intercourse  with  a  widow.  L.  Q.  R.  vi. 
p.  89. 

'  E.  g.  38  &  39  Vict.  c.  86,  s.  5,  as  to  malicious  breach  of  contract,  with 
reason  to  believe  that  the  consequence  may  be  to  cause  danger  to  life  or 
serious  bodily  injury,  or  to  expose  valuable  property  to  destruction  or 
serious  injury.  Cf.  the  provisions  in  Irish  Statutes  against  ploughing 
grass  lands.  Cf.  also  in  Holtzendorflf's  Encyclopadie  the  art.  '  Vertrags- 
verletzung.' 

*  E.g.  the  conviction,  though  only  under  the  Debtors  Act,  1869,  §  i3,cf 
one  who  had  dined  at  a  restaurant,  having  no  means  of  paying  for  what 
he  had  ordered.    R.  v.  Jones  [1898]  i  Q.  B.  119. 

'  Thus  by  7  W.  IV.  and  i  Vict.  c.  36.  s.  40,  articles  sent  by  post  are,  for 
the  purposes  of  the  Act,  made  the  property  of  the  Postmaster-General. 
It  would  have  been  sufficient,  and  in  accordance  with  fact,  to  declare 


CRIMINAL   PROCEDURE.  375 

IV.  Adjective  criminal  law,  '  Penal  Procedure,'  '  Instruc-  chap.  xvi. 

tion  criminelle,' '  Straf  prozess,'  is  the  body  of  rules  whereby  Criminal 

procedure, 
the  machinery  of    the   Courts   is   set  in   motion  for   the 

punishment  of  offenders. 

It  consists  usually  of  two  species ;  a  simpler,  '  peines  de 
police,'  'summary  convictions,'  applicable,  unless  with  the 
consent  of  the  accused,  only  to  trilling  transgressions ;  and 
a  more  solemn,  for  the  trial  of  serious  crimes. 

Each  of  these  consists  of  several  stages,  having  a  strong 
resemblance  to  the  stages  of  procedure  in  private  law\ 
In  the  more  solemn  procedure  we  may  distinguish:  — 

i.  The  choice  of  the  proper  jurisdiction.  Jurisdic- 

tion. 

ii  The  choice  of  the  proper  Court.  Court. 

iii.  The  procedure  proper,  consisting  of —  Procedure. 

1.  The  summons,  by  which  the  accused  is  called  upon, 
or  the  warrant,  under  which  he  is  compelled,  to  appear 
to  answer  the  charge. 

2.  The  preliminary  investigation,  terminating  in  the 
discharge  of  the  accused,  or  in  his  being  committed  for 
trial. 

3.  The  measures  ensuring  that  the  accused  shall  be 
forthcoming  for  trial,  viz.  either  imprisonment  or  security 
given  by  himself  or  his  friends. 

4.  The  pleadings,  by  which,  on  the  one  hand,  the  pro- 
secution informs  the  Court  and  the  accused  of  the  nature 
of  the  charge  against  him,  and,  on  the  other  hand,  the 
accused  states  the  nature  of  his  defence. 

5.  The    trial,  conducted    on  a  prescribed    plan    and    in 

that  such  articles  are  in  his  possession.  This  rule  is  peculiar  to  the  law 
of  England.  For  a  comparative  view  of  the  laws  of  other  countries  upon 
the  subject,  see  an  art.  by  M.  de  Kirchenheim  in  the  Revue  de  Droit 
International,  xiv.  p.  616. 

'  Supra,  p.  348.  The  resemblance  is  stronger  in  England  than  on  the 
continent,  which  is  still  under  the  influence  of  the  '  inquisitorial'  method 
introduced  into  Germany  by  the  Constitutio  Criminalis  Carolina. 


376 


PUBLIC   LAW. 


CHAP.  XVI.  accordance  with  rules  of  evidence  which  differ  in  certain 
respects  from  those  which  prevail  in  civil  suits'. 

6.  The  verdict  and  judgment. 

7.  The  procedure  on  appeal,  so  far  as  an  appeal  is  per- 
missible. 


Execution. 


Public  pro- 
secutor. 


iv.  Execution,  which  is  carried  out  by  the  functionary 
to  whom  the  force  of  the  State  is  entrusted  for  tlie 
purpose. 

The  bringing  of  criminals  to  justice  may  be  confided,  as 
it  generally  is  on  the  continent,  to  a  'ministere  public,' 
'  Staatsanwaltschaft,'  or  left,  as  it  generally  has  been  in 
England,  and  was  at  Rome,  to  the  industry  of  the  injured 
individual  ^ 


Law  of  the 
State  as  a 
juristic 
person. 


V.  Besides  its  rights  and  duties  as  the  guardian  of  order, 
in  which  respect  little  analogy  can  be  remarked  to  any- 
thing in  private  law,  the  State,  as  a  great  juristic  person, 
enjoys  many  quasi-rights  against  individuals,  as  well 
strangers  as  subjects,  and  is  liable  to  many  quasi-duties 
in  their  favour.  These  rights  and  duties  closely  resemble 
those  which  private  law  recognises  as  subsisting  between 
one  individual  and  another  ^  The  State,  irrespectively 
of  the  so-called  '  eminent  domain '  which  it  enjoys  over  all 


'  Supra,  p.  351.  On  the  tendency  towards  an  assimilation  of  the  rules 
of  evidence  in  civil  and  criminal  cases,  see  the  remarks  of  M.  A.  Prins, 
Etude  sur  la  procMure  penale  k  Londres,  1879,  p.  4. 

*  A  Roman  form  of  indictment  is  preserved  in  the  following  fragment 
of  Paulus : '  Consul  et  dies,  apud  ilium  praetorem  vel  proconsulem,  Lucius 
Titius  professus  est  se  Maeviam  lege  lulia  de  adulteriis  ream  deferre,  quod 
dicat  eam  cum  Gaio  Seio,  in  civitate  ilia,  domo  illius,  mense  illo,  consuli- 
bus  illis,  adulterium  commisisse.'  Dig.  xlviii.  2.  3.  The  office  of '  Director 
of  Public  Prosecutions'  was  established  in  England  by  42  &  43  Vict. 
c.  22. 

'  See  the  remarks  of  Grotius  upon  the  transactions  of  those  '  qui  sum- 
mam  habent  potestatem  ...  in  his  quae  privatim  agunt.'  De  I.  B.  et  P. 
ii.  2.  5.  3.  On  the  entry  of  the  'fiscus'  into  the  domain  of  private  law, 
see  Sohm,  Institutionen,  §  20,  Transl.  p.  103. 


QUASI-PRIVATE.  377 

the  property  of  its  subjects  \  is  usually  a  great  landed  pro-  chap.  xvi. 
prietor ;  and  in  respect  of  its  land  is  entitled  to  servitudes 
over  the  estates  of  individuals,  and  subject  to  servitudes 
for  the  benefit  of  such  estates.  It  owns  buildings  of  all 
sorts,  from  the  palace  to  the  poUce-station,  and  a  large 
amount  of  personal  property,  from  pictures  by  Titian  and 
Tintoretto  to  cloth  for  making  the  prison  dress  of  convicts. 
It  carries  on  gigantic  manufacturing  undertakings,  lends 
and  borrows  money,  issues  promissory  notes,  and  generally 
enters  into  aU  kinds  of  contracts.  It  necessarily  acts  by 
means  of  agents,  who  may  exceed  their  powers  or  act 
fraudulently.  Its  servants  may  wilfully  or  negligently 
cause  damage  to  individuals.  It  may  become  a  mortgagee, 
and  in  many  cases  allows  itself  a  tacit  hypothec  by  way 
of  security  for  what  is  owed  to  it.  It  is  capable  of  taking 
under  a  will,  and  succeeds  ab  intestato  to  all  those  who 
die  without  leaving  heirs.  Its  rights  and  liabilities  under 
many  of  these  heads  are  different  from  those  of  individuals, 
or  even  of  private  artificial  persons,  especially  with  refer- 
ence to  liability  for  injuries  done  by  its  servants,  and  as 
to  the  barring  of  its  rights  by  prescription,  though  here 
the  modern  tendency  is  to  modify  the  strictness  of  the  old 
rule  that '  nullum  tempus  occurrit  regi  ^.' 


VI.  The  substantive  law  affecting  the  State  as  a  quasi-  Law  of 
private  juristic  personality  is  supplemented  by  a  body  of  ^^~ 
adjective  rules,  prescribing  the  mode  in  which  the  State, 


*  The  term  seems  to  have  originated  with  Grotius,  I.  B.  et  P.  i.  3.  6; 

ii.  14.  7.  See  Bynkershoek,  Quaestiones  I.  P.  ii.  15.  It  is  employed  by 
Vattel,  whence  perhaps  imported,  by  the  Translation  of  1760,  into  the 
English  language. 

^  Cf.  the  'nullum  tempus'  Act,  9  G.  III.  c.  16,  and  24  &  25  Vict.  c.  62, 
barring  the  Crown  as  to  lands  and  rents  after  sixty  years.  By  the  Code 
Civil,  art.  2227, '  L'^tat,  les  ^tablissements  publics,  et  les  communes,  sont 
soumis  aux  memes  prescriptions  que  les  particuliers,  et  peuvent  6gale- 
ment  les  opposer.' 


378  PUBLIC   LAW. 

CHAP.  XVI.  as  such  a  personality,  may  sue  or  be  sued  \    The  procedure 

thus  provided  is  not,  it  may  be  remarked,  as  in  private 

law,  similar  for  both  parties,  but  varies  according  as  the 

party,  plaintiff  or  defendant,  is    the   State  or  a  private 

individual.    In   other  words,  the  procedure,  as  compared 

with  the  ordinary  procedure  between  individuals,  is  always 

abnormal ;  and  its  abnormity  takes  different  forms  when 

the  sovereign  takes  proceedings  against  one  of  the  subjects, 

or  a  subject  takes  proceedings  against  his  sovereign.    The 

reason,  of  course,  being  that  the  litigation  is  between  the 

sovereign,  who  is  the  source  of  all  right,  and  the  subject. 

whose  rights  are  wholly  dependent    on  the  will  of  the 

sovereign. 

The  character  of  this  procedure  varies  considerably  in 

different  countries. 

Against  In   England  the  old  common  law  methods  of  getting 

the  State.  ,  .  ,,^  ,4^..        ,,., 

redress  from  the  Crown  were  by     petition  de  droit    and 

'monstrans  de  droit,'  m  the  Court  of  Chancery  or  the 
Court  of  Exchequer,  and  in  some  cases  by  proceedings  in 
Chancery  against  the  Attorney-General.  It  has  been 
provided  by  a  modern  statute^  that  a  Petition  of  Right 
may  be  entitled  in  any  one  of  the  superior  Courts  in  which 
the  subject-matter  of  the  petition  would  have  been  cognis- 
able, if  the  same  had  been  a  matter  in  dispute  between 
subject  and  subject,  and  that  it  shall  be  left  with  the 
Secretary  of  State  for  the  Home  Department,  for  Her 
Majesty's  consideration,  who,  if  she  shall  think  fit,  may 
grant  her  fiat  that  right  be  done,  whereupon  an  answer, 
plea,  or  demurrer  shall  be  made  on  behalf  of  the  Crown, 
and  the  subsequent  proceedings  be  assimilated  as  far  as 
practicable  to  the  course  of  an  ordinary  action.  It  is  also 
provided  that  costs  shall  be  payable  both  to  and  by  the 


•  Cf.  supra,  p.  127. 

»  23&24Vict.  c.  24.  See  Tobinv.  The  Queen,  i6C.B.,N.S.,  310;  R. 
w.  Windsor,  1 1  A.  C.  607.  West  Rand  Central  Gold  Co.  t).  the  King  [1905] 
2  K.  B.  391. 


PROCEDURE.  379 

Crown,  subject  to  the  same  rules,  so  far  as  practicable,  as  chap.  xvi. 
obtain  in  proceedings  between  subject  and  subject  \ 

The  Crown  may  obtain  redress  against  its  subjects  by  By  the 
such  common  law  actions  as  are  consistent  with  the  royal 
dignity ;  but  much  easier  and  more  effectual  remedies  are 
usually  obtained  by  such  prerogative  modes  of  process  as 
are  peculiarly  confined  to  it^  such  as  an  'inquest  of 
office,'  a  'writ  of  extent,'  a  'writ  of  scire  facias^  or  an 
'information'  exhibited  by  the  Attorney-General  in  the 
King's  Bench  Division  of  the  High  Court.  The  old 
exemption  of  the  Crown  from  the  payment  of  costs  in 
proceedings  with  subjects  has  been  nearly  aboUshed  by  a 
succession  of  statutes. 

*  The  Workmen's  Compensation  Act,  supra,  p.  150,  appHes  when  the 
Crown  is  Employer,  except  in  the  military  and  naval  services.  On  the  law 
of  the  United  States  upon  this  subject,  cf.  supra,  p.  127,  n.  i.  It  is 
noticeable  that  in  Egypt  actions  may  be  brought  in  the  International 
Courts  directly  against  the  Government.  R^glement  pour  les  procte- 
mixtes,  tit.  i.  art.  10. 

'  Blackstone,  3  Comm.  258. 


CHAPTER  XVII. 


INTERNATIONAL     LAW. 


The  nature 
of  inter- 
national 
law. 


The  body  of  rules  regulating  those  rights  in  which 
both  of  the  personal  factors  are  States,  is  loosely  called 
'  the  Law  of  Nations,'  but  more  appropriately  '  lus  inter 
Gentes,'  or  '  International  Law  ^' 

It  differs  from  ordinary  law  in  being  unsupported  by  the 
authority  of  a  State.  It  differs  from  ordinary  morality 
in  being  a  rule  for  States  and  not  for  individuals. 

It  is  the  vanishing  point  of  Jurisprudence ;  since  it  lacks 
any  arbiter  of    disputed    questions,   save  public  opinion. 


'  Cf.  supra,  p.  127.  The  term  'lus  inter  Gentes'  is  due  to  the  Oxford 
Professor,  Richard  Zouche,  1650,  though  the  component  words  of  the 
appellation  occur  in  descriptions  of  the  science  by  Victoria,  Vasquez, 
Suarez  and  Grotius.  The  Chancellor  D'Aguesseau,  in  the  '  Instructions 
sur  les  6tudes,'  addressed  in  171 6  to  his  eldest  son,  introduces  him  to 
*ce  qu'on  appelle  le  Droit  des  Gens,  ou,  pour  parler  plus  correctement, 
parce  que  le  nom  de  Droit  des  Gens  a  un  autre  sens,  le  Droit  putre  les 
Nations,  lus  inter  Gentes.'  (Euvres,  i.  p.  268.  Cf.  ib.,  pp.  444,  521,  548. 
The  Abb6  de  Saint-Pierre,  according  to  M.  Nys,  Rev.  de  Droit  Int., 
t.  xxiii.  p.  428,  also  speaks  of  'le  Droit  entre  Nations,'  in  his  Ouvrages 
de  politique  et  de  morale,  1738-41.  It  was  Jeremy  Bentham  who  at 
last  coined  the  term  International  Law,  in  his  Principles  of  Morals  and 
Legislation,  first  published  in  1789,  as  appropriate  to  the  'mutual  trans- 
actions of  sovereigns  as  such ' ;  adding  in  a  note :  '  the  word  international, 
it  must  be  acknowledged,  is  a  new  one;  though,  it  is  hoped,  sufficiently 
analogous  and  intelligible.  It  is  calculated  to  express,  in  a  more 
significant  way,  the  branch  of  law  which  goes  commonly  under  the  name 
of  the  law  of  nations.' 


ANALOGY    TO   PRIVATE   LAW.  38 1 

beyond  and  above  the  disputant  parties  themselves,  and  chap.  xvii. 
since,  in  proportion  as  it  tends  to  become  assimilated  to 
true  law  by  the  aggregate  of  States  into  a  larger  society, 
it  ceases  to  be  itself,  and  is  transmuted  into  the  pubUc 
law  of  a  federal  government.  The  realisation  of  the 
'civitas  maxima'  of  which  theorists  have  dreamed  would 
thus  be  not  the  triumph,  but  the  extinction,  of  Inter- 
national law,  which  can  subsist  only  between  States  which, 
on  the  one  hand,  sufficiently  resemble  one  another,  and 
are  closely  enough  knit  together  by  common  interests,  to 
be  susceptible  of  a  uniform  pressure  of  public  opinion, 
while,  on  the  other  hand,  they  are  not  so  politically 
combined  as  to  be  controlled  by  the  force  of  a  central 
authority.  These  conditions  of  political  independence  and 
social  sympathy  have  been  twice  realised  in  the  history 
of  the  world.  Very  imperfectly,  between  the  various 
cities  of  Hellas,  which  accordingly  acknowledged,  as  in 
some  degree  obligatory  on  all,  ret  kolvo.  rwv  'EXXi^vtov  vofUfjM  \ 
More  fully  between  the  States  of  modern  Christendom  ^  no 
one  of  which  would  venture  at  the  present  day  expressly 
to  repudiate  the  duty  of  conforming  to  the  precepts  of 
International  law  in  its  dealings  with  the  rest. 

Just  as  what  is  not  very  conveniently  termed  '  Municipal ' 
law  is  recognised  as  supreme  over  all  questions  of  private 
or  public  right  arising  within  the  jurisdiction  of  any  given 
State  \  so  it  is  conceded  that  '  International  law,'  so  far 
as  its  doctrines  have  been  generally  received,  is  decisive 
of  all  questions  which  arise  between  one  State  and  another. 


*  Thuc.  iii.  59. 

^  On  the  accession  of  non-Christian  States  to  this  group,  see  infra, 

P-  385- 

'  Cf.  supra,  p.  128.  Bentham,  Principles  of  Morals  and  Legislation, 
ch.  xvii,  is  mistaken  in  supposing  Blackstone  to  have  been  the  first  to  use 
'municipal'  as  equivalent  to  'national'  or  'internal'  law;  a  sense  of 
the  term  which  was  well  established  at  least  as  early  as  the  sixteenth 
century.  Blackstone  expressly  says, '  I  call  it  municipal  law  in  accordance 
with  common  speech.'    i  Comm.  44. 


382  INTERNATIONAL   LAW. 

CHAP.  XVII.  Its  true  nature  and  functions  have  never  been  better 
described  than  in  the  following  passage,  in  which  they 
were  for  the  first  time  adequately  set  forth,  in  the  early 
years  of  the  seventeenth  century.  ■ '  Ratio  autem  huius 
partis  iuris  est,'  says  Suarez,  'quia  humanum  genus, 
quantumvis  in  varies  populos  et  regna  divisum,  semper 
habet  aliquam  unitatem  non  solum  specificam,  sed  etiam 
quasi  politicam  et  moralem,  quam  indicat  naturale  prae- 
ceptum  mutui  amoris  et  misericordiae  quod  ad  omnes 
extenditur,  etiam  extraneos  et  cuiuscunque  nationis.  Qua- 
propter  licet  unaquaeque  civitas,  perfecta  respublica,  aut 
regnum,  sit  in  se  communitas  perfecta  et  suis  membris 
constans,  nihilominus  quaelibet  illarum  est  etiam  membrum 
aliquo  modo  huius  universi,  prout  ad  genus  humanum 
spectat,  .  .  .  hac  ergo  ratione  indigent  aliquo  iure  quo 
dirigantur  et  recte  ordinentur,  in  hoc  genere  communica- 
tionis  et  societatis.  Et  quamvis  magna  ex  parte  hoc  fiat  per 
rationem  naturalem,  non  tamen  suflBcienter  et  immediate 
quoad  omnia,  ideoque  aUqua  specialia  iura  potuerunt  usu 
earum  gentium  introduci\' 

Although,  as  being  concerned  with  the  relations  of 
States, '  international '  is  in  a  sense  a  department  of  '  public ' 
law,  its  analogies  are  rather  to  the  private  than  to  the 
public  branch  of  law  municipal.  The  reason  being  that, 
while  in  public  (municipal)  law  the  personal  factors  in  a 
right  are  always  dissimilar,  in  international,  as  in  private, 
law  they  are  always  similar.  Just  as  the  parties  in 
private  law  are  two  individuals,  so  in  international  law 
are  they  two  States.  Much  confusion  is  occasioned  by 
authors  who,  failing  to  grasp  this  essential  characteristic 
of  International  law,  speak  of  sovereigns  and  ambassadors 
as  'international  persons,'  or  treat  of  States  as  capable 


*  De  lege  et  Deo  legislatore,  ii.  c.  xix.  §  g.  For  an  admirable  modem 
statement  of  the  true  nature  of  International  law,  see  per  I^ord  Alverstone 
in  West  Rand  Central  Gold  Mining  Co.  v.  The  King  [1905]  2  K.  B.  at 
p.  402. 


INTERNATIONAL    PERSONS.  383 

of  having  international  relations  with  individuals ;  regard-  chap.  xvii. 
ing,  for  instance,  the  seizure  of  a  blockade-runner  as  an 
exercise  of  authority  by  a  belligerent  State  over  a  neutral 
subject. 

Hence  it  is  that  the  topics  of  this  science  may  be 
most  conveniently  grouped  in  general  accordance  with  the 
principles  of  division  which  were  originally  discovered 
by  the  analysis  of  private  law.  There  is  a  'substantive' 
and  an  '  adjective '  law  of  nations :  the  persons  governed 
by  this  law  may  be  '  normal '  or  '  abnormal ' ;  and  their 
rights  may  be  'antecedent'  or  'remedial,'  'in  rem'  or  'in 
personam.' 

A  distribution  of  the  subject  upon  these  lines,  rather  Classifica- 
than  in  accordance  with  the  method  which,  originated  by  ^^^i^^ 
Kliiber,  has  since  become  traditional,  especially  on  the 
other  side  of  the  Atlantic,  has  been  elsewhere  advocated 
by  the  present  writer  \  in  the  following  terms :  — '  The  law 
of  nations  is  but  private  law  "writ  large."  It  is  an  appli- 
cation to  poUtical  communities  of  those  legal  ideas  which 
were  originally  applied  to  the  relations  of  individuals. 
Its  leading  distinctions  are  therefore  naturally  those  with 
which  private  law  has  long  ago  rendered  us  familiar.  In 
international,  as  in  private  law,  we  are  concerned  with 
the  Persons  for  whose  sake  rights  are  recognised;  with 
the  Rights  thus  recognised;  and  with  the  Protection 
by  which  those  rights  are  made  effective.  We  have  a 
law  of  Persons ;  a  Substantive  law  which  sets  forth  and 
explains  the  rights  of  those  persons ;  and  an  Adjective 
law,  which  describes  the  procedure  by  which  redress  is 
to  be  obtained  when  those  rights  are  violated.  The  inter- 
national law  of  persons  consists  of  an  investigation  into 


*  In  an  Oxford  lecture,  a  translation  of  which  appeared  under  the  title 
'  I^s  Debats  diplomatiques  r^ents  dans  leurs  rapports  avec  le  systfeme 
du  droit  international,'  in  the  Revue  de  Droit  International  for  1878, 
p.  167.  See  now  the  author's  Studies  in  International  Law  (1898),  p.  151. 


384 


INTERNATIONAL   LAW. 


CHAP.  XVII.  the  nature  of  a  sovereign  State  and  of  the  deviations 
from  it.  The  substantive  law  of  nations  inquires  into 
the  character,  origin,  and  termination  of  the  rights  which 
States  may  enjoy;  while  the  adjective  law  of  nations 
describes  the  procedure  by  which  redress  is  obtained 
for  international  wrong- doing.  This  last-mentioned  de- 
partment is  subdivided  into  the  law  which  regulates 
the  relations  of  the  belligerents  to  one  another,  and  the 
law  which  regulates  the  relations  of  each  belligerent 
with  States  which  take  no  part  in  the  war.  The  whole 
science  is  thus  divisible  into  four  great  chapters,  which 
may  be  shortly  described  as  treating  respectively  of 
international  Status;  of  Peaee;  of  BelUgerency;  and  of 
Neutrality.' 


Inter- 
national 
persons. 


Normal 

and 

abnormal. 


I.  The  Persons  known  to  International  law  are  States. 

The  normal  international  person  is  a  State  which 
not  only  enjoys  full  external  sovereignty,  but  also  is 
a  recognised  member  of  the  family  of  nations.  States 
which  vary  from  this  type  either  by  being  defective  in 
sovereignty,  or  by  having  no  place  in  the  family  of 
nations,  are  abnormal  international  persons. 

The  characteristics  of  a  State,  as  distinguished  from  non- 
political  societies,  have  been  necessarily  touched  upon 
in  an  earlier  chapter ;  where  also  will  be  found  an 
explanation  of  the  differences  between  a  State  which 
possesses  full '  external  sovereignty '  and  one  which  is  '  mi- 
souverain,'  as  being  'protected'  or  otherwise  dependent 
on  another  \  '  The  family  of  nations '  is  an  aggregate  of 
States  which,  as  the  result  of  their  historical  antecedents, 
have  inherited  a  common  civilisation,  and  are  at  a  similar 
level  of  moral  and  political  opinion.  The  term  may  be 
said  to  include    the    Christian    nations    of    Europe    and 


*  Supra,  p.  48.  The  term  '  halbsouveran '  seems  to  have  been  invented 
by  Moser  (1777),  Versuch,  Bd.  I.  Th.  i.  §  11. 


ANTECEDENT   RIGHTS.  385 

their  offshoots  in  America,  with  the  addition  of  the  chap.  xvn. 
Ottoman  Empire,  which  was  declared  by  the  treaty  of 
Paris  of  1856  to  be  admitted  to  the  'Concert  Europeen.' 
Within  this  charmed  circle,  to  which  Japan  also,  some 
time  since,  fully  established  her  claim  to  be  admitted,  all 
States  according  to  the  theory  of  International  law,  are 
equal.  Outside  of  it,  no  State,  be  it  as  powerful  and  as 
civilised  as  China  or  Persia,  can  be  regarded  as  a  wholly 
normal  international  person. 

The  topics  of  semi-sovereignty  and  protection  present 
considerable  analogies  to  those  of  infancy,  coverture,  and 
tutelage  in  Private  law.  It  may  also  be  remarked  that 
as  individual  human  beings  are  born,  attain  the  age  of 
majority,  and  die,  so  States  come  into  existence,  obtain 
full  international  recognition,  and  cease  to  be. 

A  new  State  arises  either :  Originally,  where  no  State  Origin  of 
existed  previously,  a  case  now  necessarily  of  infrequent"" 
occurrence ;  or  derivatively,  by  separation  from  a  previously 
existing  State,  and  this  either  by  agreement  with  the  older 
State,  or  against  its  wishes.  It  is  in  the  last-mentioned 
case  that  other  nations  often  feel  a  difficulty  in  deciding 
upon  the  reception  which  should  be  given  to  the  new 
claimant  for  national  honours. 

The  question  at  what  moment  a  State  ceases  to  exist  Termina- 
ls the  same  with  the  inquiry  as  to  what  constitutes  its 
identity.  The  identity  of  a  State  is  admittedly  not 
affected  by  any  change  of  constitution  or  dynasty,  or 
diminution  or  extension  of  territory,  but  only  by  the 
merger  of  one  State  in  another,  as  when  Poland  was 
divided  between  the  neighbouring  Powers,  or  by  such 
a  dissolution  of  the  political  bond  as  has  happened  in 
the  case  of  the  Jews. 

II.  The  rights  of   a    State,  like   those  of  an   individual,  Ante- 
i  ,         ,  ,    .     .        .     ,  T      ,,        ,  cedent 

are    antecedent '  as  subsistmg  mdependently  of  any  wrong-  intema- 

doing,   or  'remedial,'  as   given    by   way  of    compensation ^j^j^^ 

HOLLAND  C  C 


386  INTERNATIONAL   LAW. 

CHAP.  XVII.  for  an  injury  sustained '.  Rights  of  the  former  class 
may  be  available  either  'in  rem,'  against  all  other  States, 
or  'in  personam,'  against  a  given  State  only;  while 
rights  of  the  latter  class  are  usually  available  only  'in 
personam.' 
•In  rem.'  i.  Antecedent   international   rights  'in   rem,'  i.e.  those 

which  do  not  result  from  wrong-doing,  and  are  enjoyed  by 
a  State  as  against  all  others,  present  many  analogies  to 
the  corresponding  topics  of  Private  law^  They  may  be 
classified  as  having  reference  to  (i)  Safety;  (2)  Reputation ; 
(3)  Ownership;  (4)  Jurisdiction;  and  (5)  the  protection  of 
subjects  in  foreign  countries.  Other  classes  of  rights  are 
mentioned  in  some  books  upon  International  law  \  which, 
if  they  ought  to  be  treated  as  separate  heads  of  right 
at  all,  would  also  be  species  of  rights  'in  rem.'  Such 
are  the  so-called  rights  of  Equality,  of  Legation,  and 
of  Negotiation  and  Treaty- making ;  which  accoi;ding 
to  our  system  should  be  rather  discussed  under  the  law 
of  international  status^  being,  as  they  are,  mere  corollaries 
from  the  conception  of  a  Sovereign  State  as  an  artificial 
person. 

(i)  The  right  of  a  State  to  exist  in  safety  calls  for  no 
remark.  Its  violation  or  threatened  violation  gives  rise 
to  the  remedial  right  of  self-preservation. 

(2)  Of  the  right  to  a  good  name,  it  has  been  well  said 
that  'the  glory  of  a  nation  is  intimately  connected  with 
its  power,  of  which  it  is  a  considerable  part.  It  is  this 
distinction  which  attracts  to  it  the  consideration  of  other 
peoples,  which  makes  it  respectable  in  the  eyes  of  its 
neighbours.  A  nation  the  reputation  of  which  is  well 
established,  and  especially  one  the  glory  of  which  is 
striking,  finds  itself  sought  by  all  sovereigns.     They  desire 


*  Cf.  supra,  p.  141. 
'  Supra,  p.  163. 

*  Kliiber,  Droit  des  gens  modeme,  §§  89,  1 44, 1 66;  Wheaton,  Elements, 
Pt.  ii.  c.  2,  Pt.  iii.  cc.  1,2. 


JURISDICTION.  387 

its  friendship  and  fear  to  offend  it.  Its  friends,  and  those  chap.  xvii. 
who  wish  to  become  such,  favour  its  enterprises,  and  its 
detractors  do  not  venture  to  show  their  ill-will  ^ ' 

(3)  International  ownership,  'Dominium,'  though  it 
appUes  to  property  of  all  kinds,  is  most  important 
with  reference  to  the  'territory,'  which  is,  according  to 
modern  conceptions,  essential  to  the  existence  of  a  State. 
In  a  territory,  'universitas  agrorum  intra  fines  cuiusque 
civitatis  ^,'  are  comprised  the  rivers  which  flow  through  it, 
and  the  ports  and  harbours,  creeks  and  bays,  by  which 
its  coasts  are  indented,  also  its  so-called  territorial  waters  ^ 
The  ownership  of  it  may  be  acquired  origmally  or  deriva- 
tively. In  the  former  case,  by  '  occupatio  rei  nullius  V  by 
'  accession  ^,'  and  possibly  by '  acquisitive  prescription " ' ;  and 
liere  difficult  questions  may  arise  as  to  the  extent  of  the 
acquisition,  for  the  solution  of  which  distinctions  are  drawn, 
between  'agri  limitati,'  'agri  adsignati  per  universitatem,' 
and  'agri  arciflnii.'  In  the  latter  case',  by  cession,  suc- 
cession, or  conquest. 

Besides  the  '  dominium '  which  a  State  enjoys  over  its 
own  territory,  it  may  also  have  rights  over  the  territories 
of  its  neighbours.  Such  'iura  in  re  aliena*'  may  be  in 
the  nature  of  feudal  superiority,  mortgage,  or  servitude. 

(4)  The  right  of  Jurisdiction,  '  Imperium,'  is  intimately 
connected  with  that  of  dominion ;  being,  like  it,  exercisable 
only  within  the  bounds  of  a  given  space.  The  rights 
of  a  nation  over  its  territory  are  indeed,  as  Vattel  says. 


»  Vattel,  i.  186. 

*  Dig.  1.  1 6.  239. 

'  On  a  question  recently  raised  as  to  rights  of  dominion  over  the  air- 
space conterminous  with  the  territory  of  a  State,  see  Holtzendorff, 
Handbuch,  ii.  §  46;  Rivier,  Droit  des  Gens,  i.  p.  140;  P.  Fauchille, 
Ann.  de  I'lnst.  de  Dr.  Int.,  xix.  p.  19;  E.  Nys,  ib.  p.  86,  and  Droit 
International,  t.  i.  p.  528. 

*  Cf.  supra,  p.  207.  *  Cf.  supra,  p.  208. 

*  Cf.  supra,  p.  208.  ^  Cf.  supra,  p.  209. 
^  Supra,  p.  213. 

CC3 


388  INTERNATIONAL  LAW. 

CHAP.  XVII.  twofold: — '  lo,  le  domaine,  en  vertu  duquel  la  nation 
pent  user  seul  de  ce  pays  pour  ses  besoins,  en  disposer, 
et  en  tirer  I'usage  auquel  il  est  propre.  2°^  I'empire,  ou 
le  droit  du  souverain  commandement,  par  lequel  elle 
ordonne  et  dispose  a  sa  volonte  de  tout  ce  qui  se  passe 
dans  le  paysV 

The  personal  jurisdiction  which  a  State  claims  to  enjoy 
over  its  own  subjects,  wheresoever  they  may  be,  is  a 
matter  rather  of  public  than  of  international  law,  but 
the  jurisdiction  which  it  exercises  over  all  persons,  be 
they  subjects  or  aUens,  in  respect  of  acts  committed  by 
them  within  its  territory,  is  legitimated  only  by  the  rule 
of  international  law  which  obliges  the  State  to  which  such 
aliens  may  belong  to  acquiesce  in  their  pmiishment. 

Although  the  Dominion  and  the  Jurisdiction  of  a  State 
are  both  circumscribed  by  its  territory,  the  two  rights 
are  not  co-extensive,  since  by  the  custom  of  nations, 
territory'  is,  with  a  view  to  the  exercise  of  the  latter 
right,  artificially  extended  in  some  directions,  and  re- 
stricted in  others.  On  the  one  hand,  the  Jurisdiction  of 
a  State  is  allowed  to  extend,  beyond  the  bounds  of  its 
dominions,  to  all  the  ships  that  carry  its  flag  upon  the 
high  seas,  and,  for  certain  purposes,  to  all  ships,  not  being 
ships  of  war,  whatever  flag  they  may  carry,  which  pass 
within  three  miles  of  its  coasts.  On  the  other  hand.  Juris- 
diction is  artificially  restricted  by  what  is  known  as  the 
doctrine  of  'extraterritoriality,'  in  accordance  with  which 
certain  persons  and  things,  notably  foreign  sovereigns, 
ambassadors  and  ships  of  war,  though  actually  within 
the  territory,  are  treated  as  if  they  were  outside  of  it. 
Very  extensive  privileges  of  extraterritoriality  are  usually 
granted  by  Oriental  nations  to  Christian  residents  by 
express  treaty^;   and  a  nation  sometimes  assumes,  even 

'  Liv.  i.  §  204;  cf.  Grot.  De  I.  B.  et  P.  ii.  3.  4. 

^  The  grants  and  conventions  of  the  Ottoman  Empire  to  this  effect  are 
usually  known  as  'capitulations.'    The  exercise  of  the  jurisdiction  in 


TREATIES.  389 

without  treaty,  to  exercise   a  Jurisdiction  over  its  own  chap.  xvii. 
subjects  who  are  resident  in  barbarous  countries  ^ 

A  concurrent  jurisdiction  is  allowed  to  all  nations  upon 
the  high  seas  for  the  suppression  of  piracy.  Since  there 
is,  as  Grotius  says,  '  naturahs  et  tacita  confederatio 
inter  omnes  homines  contra  communes  societatis  humanae 
hostes.' 

(5)  A  State  is  not  only  entitled  to  the  immunity  from 
injury  of  its  territory  and  of  all  persons  therein,  but 
may  also  insist  that  its  subjects  individually,  wherever 
they  may  be,  shall  receive  no  harm  from  foreign  govern- 
ments or  their  subjects.  'Prima  maximeque  necessaria 
cura  pro  subditis,'  says  Grotius ;  adding, '  sunt  quasi  pars 
rectoris  ^.'  ^ 

ii.  The  antecedent  rights  of  nations  '  in  personam,'  i.  e.  *  in  per- 
8uch  as    one  nation    may    enjoy  against    another    given  ^°*™* 
nation,  are  almost  exclusively  contractual,  i.  e.  they  arise 
from  Treaty, 

It  will  be  remembered  that  a  contract  in  private  law 
was  shown  to  imply — i.  several  parties;  ii.  an  expression 
of  agreement;  iii.  a  matter  agreed  upon  which  is  both 
possible  and  legally  permitted;  iv.  is  of  a  nature  to 
produce  a  legally  binding  result;  v.  and  such  a  result 
as  affects  the  relations  of  the  parties  one  to  another; 
also  very  generally,  vi.  a  solemn  form,  or  some  fact 
which  affords  a  motive  for  the  agreement  I  All  the 
elements  of  this  analysis,  with  the  exception  of  the  last, 
are  equally  present  in  a  treaty;  though  some  of  the 
subordinate  rules  under  each  head  are  incapable  of  trans- 
plantation  from    private    to    international   law.     Thus  a 

question  by  Great  Britain  is  now  regulated  by  the  Foreign  Jurisdiction 
Act,  1890.  The  aboUtion  of  its  exercise  in  Japan  was  provided  for  by  the 
Treaty  of  July  16,  1894,  which  came  into  operation  on  July  17,  1899. 

'  E.  g.  26  &  27  Vict.  c.  35,  as  to  South  Africa;  and  the  Foreign  Juris- 
diction Act,  1890,  s.  2,  asserts  this  right  in  the  most  general  terms. 

^  I.  B.  et  P.  ii.  25.  I.  '  Supra,  p.  269. 


390  INTERNATIONAL   LAW. 

CHAP.  XVII.  treaty  is  not,  like  an  ordinary  contract,  voidable  on  the 
ground  of  'duress,'  nor  are  the  acts  of  plenipotentiaries 
as  bmdmg  on  their  sovereigns  as  they  would  be  under 
the  ordinary  law  of  agency. 

Treaties,  like  contracts,  may  be  divided  into  those 
which  are  'principal,'  which  may  again  be  subdivided, 
in  accordance  with  their  purpose,  into  treaties  of  peace, 
of  alliance,  of  cession  and  the  like;  and  those  which 
are  '  accessory,'  e.  g.  by  way  of  mortgage  or  guarantee  \ 

Since  a  nation  is  obviously  incapable  of  entering  into 
contracts,  or  otherwise  giving  expression  to  its  will,  unless 
through  a  representative,  the  topic  of  agency  occupies 
a  large  space  in  international  law,  and  is  sometimes 
added  to  the  list  of  international  rights,  under  the  style 
of  'the  right  of  Legation.'  This  is  submitted  to  be  an 
error.  A  nation  cannot  be  said  to  have  a  right  of  negoti- 
ating or  of  sending  an  embassy,  since  it  cannot  insist  that 
any  other  nation  shall  either  entertam  its  proposals  or 
receive  its  ambassador. 

The  law  of  international  agency  deals  with  the  functions, 
privileges,  and  ranks  of  ambassadors  and  other  pubUc 
ministers ;  also  with  consuls  and  other  agents  who  do  not 
enjoy  a  diplomatic  character.  The  whole  question  of  the 
inviolability  and  extraterritoriality  of  diplomatic  per- 
sonages is  naturally  analogous  to  nothing  in  private  law, 
but  resembles  rather  that  branch  of  public  municipal 
law  which  describes  the  safeguards  provided  for  the 
protection  of  government  officials  in  the  execution  of 
their  duties. 

Remedial  international  rights  vary  according  to  the 
nature  of  the  right  violated;  thus  entitling  the  injured 
State  to  an  apology,  by  salute  to  its  flag  or  otherwise, 
for  an   insult  to  its  dignity;    to  restitution  of  territory, 

'  Cf.  supra,  pp.  280,  299. 


SELF-HELP.  391 

or  other  property,  of  which  it  has  been  deprived;  or  to  chap.  xvii. 
a  money  iudemnity. 

III.  The  Adjective  law  of  nations  prescribes  the  pro- Belliger- 
cedure  by  which  the  Substantive  law  may  lawfully  be^^*^^" 
enforced,  and  corresponds  roughly  to  what  is  popularly 
called  'the  law  of  nations  in  time  of  war.'  So  far  as 
it  affects  the  disputant  parties  only,  it  is  the  law  of 
'  Belligerency.'  So  far  as  it  regulates  the  relations  of  the 
disputants  to  parties  not  engaged  in  the  struggle,  it  is 
the  law  of  'Neutrality.' 

Redress  for  a  violated  right  may  be  obtained  insteps 
a  friendly  manner,  'via  amicabili,'  by  (i)  negotiation, ^f*^^j. 
(2)  the  mediation  of  other  States,  or  (3)  arbitration^:  or 
it  may  be  obtained  by  force,  'via  facti,'  which  is  always 
necessarily  in  the  nature  of  self-help,  and  liable  to  all 
the  disadvantages  of  a  procedure  in  which  the  injured 
party  is  a  judge  in  his  own  cause  ^ 

In  the  latter  case,  if  the  right  violated,  be  one  to  acts 
of  mere  '  comity,'  the  remedy  is  what  is  called  '  Retorsion 
de  droit,'  i.  e.  a  refusal  to  perform  similar  good  offices. 
If  the  right  be  one  of  those  which  are  allowed  to  be 
'stricti  iuris,'  various  causes  of  action  are  still  open 
to    the    injured    State,  short    of    actual  war.     Such  are 


*  See  now  the  Hague  Convention  of  1899, '  Pour  le  r^glement  pacifique 
des  conflits  intemationaux,'  which  recommends,  in  addition  to  these 
methods,  'Commissions  Internationales  d'Enquete,'  art.  9,  a  suggestion 
acted  upon  in  the  case  of  the  Dogger  Bank  outrage.  It  also  expressly 
recognises  Arbitration  'comme  le  moyen  le  plus  efficace  et  en  meme 
temps  le  plus  equitable  de  r^gler  les  litiges,  &c.,  dans  les  questions  d'ordre 
juridique,  et  en  premier  lieu  dans  les  questions  d'interpr^tation  ou 
d'application  des  Conventions  Internationales,'  art.  16.  Identical 
treaties  have  accordingly  been  made  by  most  European  Powers  (1903- 
1905),  by  which  they  agree  for  five  years  to  submit  to  the  Tribimal  con- 
stituted under  arts.  20-29  of  the  Convention  such  matters  (only)  as  those 
above  specified,  '^  la  condition  toutefois,  qu'ils  ne  mettent  en  cause  ni 
les  interets  vitaux,  ni  I'ind^pendance  ou  I'honneur  des  deux  Etats  con- 
tractants,  et  qu'ils  ne  touchent  pas  aux  interets  des  tierces  Puissances.' 

*  Cf.  supra,  p.  312. 


392 


INTERNATIONAL    LAW. 


War. 


Declara- 
tion. 


CHAP  xvii.  'Reprisals,'  which,  in  their  earliest  form,  were  'special,' 
L  e,  exercised  by  injured  individuals  against  the  fellow- 
citizens  of  those  by  whom  they  had  been  injured;  but 
are  tolerated  at  the  present  day  only  in  the  form  of 
'general  reprisals,'  allowed  by  the  government  of  a  State 
to  its  subjects  generally,  or  to  its  public  forces.  Their 
characteristic,  in  either  case,  being  that  they  take  place 
in  time  of  peace,  'non  nisi  in  pace  represaliis  locus  est.' 
'Embargo'  and  'Pacific  blockade'  are  among  the  more 
important  species  of  general  reprisals. 

Actual  war  has  been  well  described  as  'the  litigation 
of  nations  \'  Ought  it,  hke  an  action  in  private  law,  to 
commence  with  a  notice  served  by  one  party  upon  the 
other,  i.  e.  with  a  formal  '  Declaration '  ?  Upon  this  point 
there  has  been  much  difference  of  opinion  and  alteration 
of  practice.  According  to  Gentili,  'si  non  est  bellum 
clandestina  magis  contentio  quam  contentio  legitima  fori 
est  iudiciorum,  haec  primum  petitio  es  denuntiatio  fieri 
debet,  ut  in  lite  inerma  fit^.' 

When  war  has  once  commenced,  the  rules  by  which 
it  is  regulated  refer,  in  the  first  place,  to  the  effect  of 
its  outbreak  upon  the  subsisting  treaties  between  the 
belligerents,  some  of  which  are  ipso  facto  abrogated, 
while  others  remain  in  force;  and  upon  the  rights  of 
each  belligerent  over  such  subjects  of  the  other  belligerent 
and  their  property  as  may  be  found  within  its  territory 
at  the  time.  They  refer,  in  the  second  place,  to  the 
actual  conduct  of  warfare,  on  land  or  at  sea,  and  to  its 
effect  upon  the  ownership  of  property. 

Questions  relating  to  the  conduct  of  warfare  may  be 
considered  under  four  heads:  viz.  (i)  military  operations, 
under  which  head  will  come  rules  as  to  stratagems,  as  to 
the  use  of  certain  weapons,  as  to  sieges  and  bombardments. 


Effect  of 
outbreak. 


Conduct  of 
warfare. 


•  By  Zouche  as  'iudicium  inter  gentes.' 

'  De  I.  B  ii.  c.  i.   The  contrary  view  has  in  modem  times  prevailed. 


BELLIGERENCY.  393 

as  to  spies  and  marauders,  as  to  quarter,  ransom  and  chap.  xtii. 
prisoners  of  war,  and  as  to  hospitals,  surgeons,  and  the 
wounded;  (2)  treatment  of  the  enemy's  country  while 
occupied,  and  therein  of  property,  public  and  private, 
and  of  'requisitions'  and  'contributions';  (3)  'commercia 
belli,'  1.  e.  such  exceptions  to  the  rule  against  intercourse 
between  enemies  as  truces,  capitulations,  safe-conducts, 
and  cartels;  (4)  'reprisals,'  in  the  sense  of  the  special 
punishments  to  be  awarded  to  enemies  guilty  of  breaches 
of  the  law  of  war^ 

The  rules  as  to  the  effect  of  war  upon  ownership  deal 
with  questions  of  the  title  to  conquered  territory,  of 
*  booty,'  of  'prize,'  of  such  immunity  as  is  accorded  to 
private  property  and  to  certain  species  of  national  property, 
of  the  acquisition  of  debts  due  to  the  enemy,  and  of  re- 
capture. 

IV.  It  is  not  unusual  to  find  in  systems  of  municipal  Neutrality, 
law  prohibitions  against  taking  up  the  law- suits  of  others 
by  way  of  '  champerty '  or  '  maintenance,'  and  agauist 
interference  with  the  course  of  criminal  justice  ^  In 
international  law  somewhat  analogous  topics  have  come 
to  occupy  a  very  important  place.  The  conduct  of 
warfare  was  long  discussed  with  reference  only  to  belli- 
gerents, but  it  became  clear  in  the  course  of  the  last 
century  that  a  far  more  complex  class  of  questions  had 
arisen  with  reference  to  the  rights  of  the  belligerents 
towards  nations  which  stand  alpof  from  the  war.  It 
had  become  necessary  to  arrive  at  some  agreement  as 
to  the  mode  of  reconciling  the  right  of  each  belligerent 
to  carry  on    his  warfare,  with  the   no   less   undeniable 


»  Cf.  the  author's  Handbook  of  the  Laws  and  Customs  of  War  on 
Land,  &c.,  1904,  mentioned  supra,  p.  366,  n.  2. 

2  E.  g.  Dig.  xlviii.  7. 6.  Cf.  Cuiacius,  Obs.  viii.  31 , "  De  Ergolabis ' ;  and 
supra,  p.  182. 


394 


INTERNATIONAL    LAW. 


CHAP.  XVII.  right  of  a  neutral  quietly  to  pursue  his  ordinary  business  \ 
Attention  was  very  early  drawn  to  the  conflict  of  the 
rights  of  a  belligerent  State  with  the  trade  of  the  subjects 
of  neutral  States,  but  the  relations  of  a  belligerent  State 
to  a  neutral  State  were  imperfectly  worked  out  till  quite 
modern  times.  The  subject  is  most  conveniently  considered 
with  reference,  first,  to  the  Rights;  and,  secondly,  to  the 
Duties  of  Neutrals. 


Rights  of 
Neutrals. 


Duties  of 
Neutrals. 


The  Rights  of  a  Neutral  are  the  fundamental  rights 
of  a  State,  modified  in  certain  respects  by  war ;  and  may 
perhaps  be  enumerated  as  follows :  — 

i.  To  sovereignty  within  its  territory ;  and  so  to  prevent, 
or  cancel,  all  belligerent  acts,  either  in  the  territory  itself 
or  in  the  adjacent  waters,  to  exercise  there  the  right  of 
asylum,  and  to  prohibit  the  exercise  there  of  any  belli- 
gerent jurisdiction. 

ii.  To  the  inviolability  of  its  public  ships. 

iii.  To  the  security  of  the  persons  and  property  of  its 
subjects  within  the  territory  of    a  belligerent,  subject  to 
.  certain  exceptions,  such  as  the  '  ius  angariae.' 

iv.  To  the  continuance  of  diplomatic  intercourse  with 
the  belligerents. 

V.  To  recognise,  under  certain  circumstances,  a  revolting 
population  as  a  de  facto  belUgerent,  or  even  as  a  new 
sovereign  State. 

The  duties  of  a  Neutral  may,  it  is  conceived,  be  classed 
under  three  heads,  of  which  the  First  consists  of  restraints 

*  The  difficulty,  says  Grotius,  had  been  perceived  long  before  his  time, 
'cum  alii  belli  rigorem,  alii  commerciorum  utilitatem  defenderent,'  L  B. 
et  P.  iii.  15.  His  treatment  of  the  subject  is  very  meagre,  and  he  has  no 
general  name  for  it,  although  Neumayr  von  Ramsla  had  published,  as 
early  as  1620,  a  special  treatise  'Von  der  Neutralitat,'  &c.  Baron  Des- 
camps  would  substitute  the  awkward  and  uninforming  term '  le  Pacigerat  * 
for  the  adequate  and  convenient  word  '  Neutrality.'  Annuaire  de  I'Instit. 
de  Droit  International,  t.  xx.  pp.  61,  211. 


NEUTRALITY.  395 

on  the  free  action  of  the  State,  as  such;  the  Second,  in  chap.  xvii. 
an  obligation  to  restrain  in   certain  respects  the  acts  of 
individuals ;  and  the  Third,  in  an  obligation  to  acquiesce 
in  the  punishment  of  its  subjects  by  a  belligerent  for  acts 
which  apart  from  the  war  would  be  innocent  \ 

i.  The  restraints  imposed  upon  the  action  of  a  neutral 
State,  as  such,  forbid  it  to  furnish  troops,  or  arms,  or 
money,  or  to  allow  passage,  to  either  belligerent,  or  to 
open  its  ports  so  as  to  further  belligerent  objects. 

ii.  The  State  is  bound  to  a  positive  interference  with 
the  acts  both  of  its  own  subjects  and  of  aliens,  so  as  to 
prevent  hostilities,  or  enlistments,  or  perhaps  the  equip- 
ment of  war-ships,  taking  place  within  its  territory,  and 
generally  to  prevent  its  territory  from  being  used  as  a 
base  of  operations  by  either  belligerent. 

iii.  There  are  certain  acts  of  neutral  subjects  with  which, 
though  detrimental  to  the  interests  of  one  or  other  of 
the  belligerents,  the  Neutral  State  is  not  bound  to  in- 
terfere. She  is  however  under  an  obligation  in  these 
cases  to  forego  her  ordinary  right  of  protecting  her 
subjects,  and  to  allow  them  to  be  interfered  with,  and 
their  property  to  be  confiscated,  by  the  belligerent  who 
has  ground  to  complain  of  their  conduct. 

Many  commercial  transactions,  which  in  time  of  peace 
are  perfectly  unobjectionable,  ^vill  thus  in  time  of  war 
expose  those  concerned  in  them  to  losses  for  which  they 
will  obtain  no  compensation.  Such  are  'breach  of 
blockade '  and  '  carriage  of  contraband ' ;  and  such  were,  at 
any  rate  till  recently,  breach  of  '  the  rule  of  the  war  of 
1756,'  carriage  of  enemies'  goods  under  a  neutral  flag,  and. 


'  On  the  division  of  neutral  duties  here  suggested,  under  the  heads  of 
'  Abstention,'  '  Prevention'  and  '  Acquiescence,'  see  further  the  author's 
paper  in  the  Proceedings  of  the  Britisli  Academy  for  1905,  or,  as  trans- 
lated, in  the  Revue  de  Droit  International,  2me  serie,  t.  vii.  p.  359. 


39^  INTERNATIONAL   LAW. 

CHAP.  XVII.  according  to  the  views  of  some  nations,  sending  neutral 
goods  under  the  flag  of  an  enemy. 

Most  writers  have  been  in  the  habit  of  seeing  in  these 
cases  a  direct  relation  between  a  belligerent  State  and 
individual  subjects  of  a  neutral  State.  It  is  submitted 
that  such  a  relation  should  never  be  recognised  by  In- 
ternational law,  which  ought  to  be  regarded  as  occupied 
exclusively  with  rights  and  duties  subsisting  between 
State  and  State. 


CHAPTER  XVIII. 


THE    APPLICATION    OF    LAW 


So  long  as  law  is  regarded  as  a  body  of  abstract 
principles,  its  interest  is  merely  speculative.  Its  practical 
importance  begins  when  these  principles  are  brought  to 
bear  upon  actual  combinations  of  circumstances. 

Many  questions  may  be  raised  as  to  the  extent  and  mode  Three 
in  which  this  takes  place,  and,  for  their  solution,  rules 
have  been  laid  down  which,  like  other  legal  rules,  are 
susceptible  of  analysis  and  classification.  They  make  up 
that  department  of  Jurisprudence  which  we  propose  to 
call  'the  Application  of  law.'  When  a  set  of  facts  has 
to  be  regulated  in  accordance  with  law,  two  questions  of 
capital  importance  present  themselves.  First,  what  State 
has  jurisdiction  to  apply  the  law  to  the  facts?  and  secondly, 
what  law  will  it  apply?  The  former  of  these  questions 
is  said  to  relate  to  the  appropriate  '  Forum,'  the  latter  to 
the  appropriate  'Lex.' 

A  third  question,  which,  for  the  purpose  of  our  present 
inquiry,  is  of  less  importance  than  these  two,  and  may  be 
dismissed  in  a  few  words,  relates  to  '  Interpretation.' 


'  A  translation  by  M.  Nys  of  this  chapter,  as  it  stood  in  the  first 
edition,  app)eared  under  the  title  'De  I'Application  de  la  Loi'  in  the 
Revue  de  Droit  International  (1880),  t.  xii.  p.  565. 


398 


THE   APPLICATION    OF    LAW. 


CH.  XVIII.  It  will  be  necessary  to  show  very  briefly  how  these 
questions  arise,  and  in  what  modes  they  are  answered,  in 
private  law ;  and  how  far  the  same  or  analogous  questions 
have  to  be  considered  also  with  reference  to  public  and 
to  international  law. 


The  appli- 
cation of 
Erivate 
iw. 

Questions 
of  Forum. 


Possible 
cases. 


Possible 
Fora. 


§  1.   Private  Law. 

In  private  law  all  three  questions  have  to  be  answered ; 
and  first  as  to  the  '  Forum.' 

I.  Given  a  set  of  circumstances  the  legal  consequences 
of  which  are  disputed,  it  obviously  becomes  necessary  to 
ascertain  in  the  Courts  of  what  country  the  dispute  can 
be  decided;  in  other  words,  what  Court  has  jurisdiction 
to  try  the  case  ratioiie  territorii^. 

For  this  purpose  it  is  indispensable  to  classify,  on  the 
one  hand,  possible  sets  of  circumstances,  and,  on  the  other 
hand,  possible  Courts. 

The  circumstances  which  may  give  rise  to  legal  con- 
troversies have  been  already  classified  in  the  preceding 
chapters. 

The  Courts  in  which  proceedings  may  possibly  be  taken 
are:  that  of  the  country  in  which  the  plaintiff,  or  the 
defendant,  is  domiciled,  or  to  which  he  owes  allegiance^, 
or  in  which  the  defendant  happens  to  be;  that  of  the 
country  in  which  the  object  in  dispute  is  situated;  that 
of  the  country  in  which  the  juristic  act  in  question,  which 
may  have  been  for  instance  a  marriage,  or  a  sale,  or 
the  making  of  a  will,  took  place ;  that  of  the  country  in 
which  the  wrongful  act  in  question  took  place;  that 
of  the  country  in  which  a   contract  was   to   produce  its 


*  This  phrase  seems  better  adapted  than  its  older  equivalent  'juris- 
diction ratione  personae '  to  distinguish  the  question  stated  in  the  text 
from  questions  as  to  '  jurisdiction  ratione  7natertae,"sachliche  Zustandig- 
keit,'  i.  e.  as  to  the  proper  court,  within  a  given  territory,  for  the  trial 
of  a  particular  class  of  actions. 

*  This  exceptional  forum  is  recognized  e-  g.  in  the  Code  Civil,  art.  14- 


THE   COMPETENT   FORUM.  399 

results ;  or  that  in  which  the  plaintiff  chooses  to  commence    ch.  xvm. 
proceedings. 

It  might  be  convenient  to  describe  these  *Fora'  re- 
spectively as  the  — 

forum  ligeaMiae^  or  domicilii^  actoris, 
forum  ligeantiae^  dom,icilii,  or  praesentiae^  rei^ 
forum,  ret  sitae, 

forum  actus,  including  c&ntrojctus  \ 
forum,  delicti  coramissi  ^, 
and  the  forum,  litis  m.otae,  or  fortuitum,. 

Of  these  technical  terms  one  only,  the  forum  {domicilii, 
ifbc.)  rei,  i.  e.  of  the  defendant,  has  obtained  general  currency, 
doubtless  by  means  of  the  long  prevalence  of  the  maxim, 
'actor  sequitur  forum  rei.' 

As  examples  of  the  questions  which  arise  as  to  the 
forum,  it  may  be  sufficient  to  mention  that  an  English 
Court  will  almost  always  decline  jurisdiction  in  divorce, 
unless  the  husband  be  domiciled  in  the  country;  and 
that  an  English  Court  will  take  cognisance  of  a  contract, 
wherever  made  and  between  whatever  parties,  whUe  a 
French  Court  is,  as  a  rule,  incompetent  to  do  so  unless  one 
of  the  contracting  parties  be  a  French  subject  or  domiciled 
in  France. 

The  Courts  of  a  given  country  have  not  only  from  time 
to  time  thus  to  decide  on  their  own  competence,  but  also 
occasionally  to  investigate  the  competence  of  the  Courts 
of  other  States ;  the  decrees  of  which,  when  4uly  made, 
they  will  often  recognise  imder  the  technical  description 
of  'Foreign  judgments,'  just  as  they  do  other  foreign 
facts  creating  rights ;  which  rights  may  thus  continue  to 
subsist  outside  of  the  jurisdiction  which  originally  gave 
them  validity. 

'  Which  latter  term  is  also  usually  employed  to  cover  what  might  be 
specially  described  as  the  forum  solutionis. 

^  A  forum  obligationis,  i.  e.  of  the  coimtry  where  the  cause  of  action  has 
arisen,  would  include  the  fora  actus  and  delicti  commissi. 


400 


THE   APPLICATION    OF   LAW. 


Questions 
of  Lex. 


Concen- 
tricity. 


Time. 


11.  The  question  as  to  the  applicable  '  Lex '  is  far  more 
complicated  than  that  as  to  the  competent  'Forum.'  The 
circumstances  which  affect  its  solution  may  be  enumerated 
as  Concentricity,  Time,  Race,  and  Place. 

i.  It  often  occurs  that  special  are  included  in  more 
general  circles  of  law.  A  city  may  be  governed  not  only 
by  its  own  statutes,  but  also  by  the  law  of  the  kingdom 
to  which  it  belongs,  and  of  the  empire  in  which  that 
kingdom  is  included,  and  it  may  be  doubted  whether 
the  affairs  of  the  citizens  are  to  be  regulated  by  the 
civic,  royal,  or  imperial  laws,  where  these  differ  from  one 
another. 

The  general  rule  is  that  the  nearer  and  narrower  law 
is  to  be  applied  rather  than  the  more  remote  and  wider, 
*Stadtrecht  bricht  Landrecht,  Landrecht  bricht  gemeines 
Recht ' ;  thus  '  gavelkind '  prevails  in  Kent  rather  than  the 
general  law  of  England  as  to  succession  to  realty  \ 

ii.  It  might  be  supposed  that  the  universally  admitted 
principle  that  laws  have,  in  the  absence  of  express  pro- 
vision to  that  effect,  no  retrospective  operation,  'leges  et 
constitutiones  futuris  dare  formam  negotiis,  non  ad  facta 
praeterita  revocari^'  would  prevent  all  doubt  whether  a 
given  state  of  facts  is  to  be  governed  by  a  new  or  by  an 
old  law.  This  is  however  by  no  means  the  case,  since 
some  legal  relations,  such  for  instance  as  acquisition  by 
prescription  or  under  a  will,  are  the  result  of  a  series 
of  facts  occurring  through  a  prolonged  period.  There  is 
accordingly  a  literature  devoted  to  the  discussion  of  the 
'temporal  limits'  of  the  application  of  law^ 


*  On  the  conflict  between  Federal  and  State  decisions  in  the  United 
States,  see  an  article  in  the  American  Law  Review,  xvii.  p.  743.  Cf.  the 
Einfiihrungsgesetz  zum  btirgerlichen  Gesetzbuche,  Erster  Abschn.,  art.  3. 

*  Cod.  i.  4-  7. 

^  E.  g.  Struve,  Uber  das  positive  Rechtsgesetz  riicksichtlich  seiner  Aus- 
dehnung  in  der  Zeit,   1831;    Savigny's  discussion  of  the  'zeitlichen 


THE   APPROPRIATE    LEX.  401 

iii.  There  is  a  stage  of  civilisation  at  which  law  .is  ch.  xvin. 
addressed,  not  to  the  inhabitants  of  a  country,  but  to  the  Race, 
members  of  a  tribe,  or  the  followers  of  a  religious  system, 
irrespectively  of  the  locality  in  which  they  may  happen 
to  be.  This  is  the  '  personal '  stage  in  the  development  of 
law.  The  governments  which  the  barbarians  established 
on  the  ruins  of  the  Roman  empire  did  not  administer  one 
system  of  justice  applicable  throughout  a  given  territory, 
but  decided  each  case  that  arose  in  pursuance  of  the 
personal  law  of  the  defendant ' ;  so  that,  according  to 
an  often-quoted  passage  in  one  of  the  tracts  of  Bishop 
Agobard,  it  might  well  happen  that  '  five  men,  each  under 
a  different  law,  would  be  found  walking  or  sitting  to- 
gether ^'  In  one  and  the  same  town  the  Frank,  the 
Burgundian,  and  the  Roman  lived  each  under  his  own 
system  of  law.  A  similar  phenomenon  may  be  seen  at 
the  present  day  in  British  India.  'The  notion  of  a 
territorial  law,'  it  has  been  said, '  is  European  and  modern. 
The  laws  which  Hindoos  and  Mahomedans  obey  do  not 
recognise  territorial  limits.  The  Shasters  and  the  Koran 
revealed  religion  and  law  to  distinct  peoples,  each  of  whom 
recognised  a  common  faith  as  the  only  bond  of  union, 
but  were  ignorant  of  the  novel  doctrine  that  law  and 
sovereignty  could  be  conterminous  with  territorial  limits  ^' 
The  British  Courts,  in  dealing  with  members  of  the  Hindoo 


Granzen,'  System,  Bd.  viii.  pp.  368-540;  Chabot  de  TAllier,  Questions 
transitoires  surle  Code  Naix)l^n,  1 809;  and  Professor  Affolter,  Geschichte 
des  intertemporalen  Privatrechts,  1902. 

'  Marriage  was  contracted  according  to  the  law  of  the  husband,  and 
wives  married  according  to  their  own  law  could  be  dismissed  at  pleasure, 
but  for  such  religious  prohibitions  as  that  of  the  council  of  Tibur,  Mansi, 
t.  xviii.  col.  151,  cited  by  Westlake,  Private  International  Law,  ed.  2. 
p.  II  n. 

*  'Nam'plerumquecontingitutsimuleantautsedeantquinquehomines, 
et  nullus  eorum  communem  legem  cum  altero  habeat,  exterius  in  rebus 
transitoriis,  cum  interius  in  rebus  perennibus  una  Christi  lege  teneantur.' 
Adv.  legem  Gundobadi,  c.  4,  Op.  i.  p.  m. 

'  Cowell,  Tagore  Lectures,  1870,  p.  40. 

HOLLAND  D  d 


402  THE   APPLICATION    OF    LAW. 

CH.  XVIII.  or  Mahometan  communities,  hold  that  wherever  such 
persons  go  within  the  limits  of  British  territory,  they  carry 
with  them,  as  a  personal  law  applicable  to  their  family 
and  possessions,  Hindoo  or  Mahometan  law  respectively  \ 

Place.  iv.  According  to  modern  ideas,  a  system  of  law  applies 

not  to  a  given  race,  but  to  a  given  territory.  It  follows 
from  the  independence  of  each  State  within  its  own  borders 
that  it  might,  without  contravening  any  principle  of 
international  law,  regulate  every  set  of  circumstances 
which  calls  for  decision  exclusively  by  its  own  law.  This 
law,  technically  described  as  the  lex  fori^  may  be  said  to 
be  the  natural  law  for  the  Courts  of  each  State  to  apply ; 
and  it  is  that  which  will  undoubtedly  be  applied  by  them, 
in  the  absence  of  special  reason  to  the  contrary^.  With 
the  development  of  civiUsation  and  commerce  it  has  how- 
ever become  as  inconvenient  as  it  is  inequitable  to  apply 
this  law  rigidly  to  all  transactions,  whether  completed 
wholly  within  the  territory,  or  partly  outside  of  it,  and 
to  acts  of  all  persons,  whether  permanently  settled  in  the 
country,  or  merely  passing  through  it.  The  Law  Courts 
are  of  course  bound  to  apply  to  each  case  the  law  which 


*  Cf.  Cowell,  Tagore  Lectures,  1870,  p.  5,  and  the  First  Report  of  the 
Commission  for  a  body  of  Substantive  Law  for  India,  p.  80. 

'  It  must  be  noticed  that  an  ambiguity  lurks  in  the  phrase  '  law  of  the 
country,'  which  has  quite  recently  given  occasion  to  a  considerable  litera- 
ture. Does,  e.g., '  the  law  of  England '  (or '  of  France ')  include,  or  exclude, 
the  rules  followed  by  the  English  (or  the  French)  Courts  in  determining 
the  system  of  law  applicable  to  a  given  case?  If  the  phrase  includes 
such  rules,  then  the  meaning  of  saying  that  a  given  case  is  to  be  decided 
according  to  the  law  of  Spain,  may  be  that  it  is  to  be  decided  according 
to  the  system  which  that  law  thinks  to  be  applicable  to  such  cases,  which 
may  be  the  law  of  France.  The  view  that  cases  determinable  by  the  law 
of  one  country  may  thus, forthatveryreason,  be  determined  in  accordance 
with  the  law  of  some  other  country,  is  known  as  the  doctrine  of  Renvoi, 
Rinvio,  Riick-und  Weiterverweisung.  See  especially  Buzzati,  II  Rinvio  nel 
Diritto  Intemazionale  Privato,  1898,  also  I'Annuaire  de  I'lnst.  de  Droit 
International,  t.  xviii.  p.  145,  and  Notes  on  the  Doctrine  of  Renvoi,  by 
J.  P.  Bate,  1904.   Cf.  Dicey,  Conflict,  p.  76. 


THE   APPROPRIATE   LEX.  403 

the  sovereign  has  provided  for  its  regulation,  but,  as  has  ch.  xviir. 
been  well  observed,  there  is  no  reason  to  suppose  that  the 
sovereign  enacted  the  ordinary  lex  fori  with  a  view  to 
the  exceptional  cases  in  question.  It  accordingly  became 
necessary  to  classify  these  '  mixed  cases,'  and  to  determine 
what  are  the  categories  of  law  by  which,  in  accordance 
with  equity  and  with  the  general  convenience,  each  ought 
to  be  governed. 

The  possible  cases  must  come  within  the  classification  Possible 
with  which  the  previous  chapters  have  familiarised  us,  i.  e.  '^^^^' 
they  must  be  cases  of  status,  of  property,  of  contract,  and 
so  forth.    The  possible  law  may  be  that  of  the  country  to  Possible 
which  one  of  the  persons  concerned  owes  allegiance,  or  in  *^^' 
which  he  is  domiciled,  or  in  which  the  thing  in  question  is 
situated,  or  in  which  the  wrong  in  question  was  committed, 
or  in  which  an  act,  such  as  the  making  of  a  will  or  of  a 
contract,  was  performed,  or  in  which  a  contract  was  to  be 
carried   out.     These   distinctions  may  be   technically  ex- 
pressed by  the  following  terms  respectively:  — 

lex  ligeantiae, 

lex  domicilii, 

lex  loci  rei  sitae, 

lex  loci  delicti  commissi, 

lex  loci  actus,  of  which  contractus  is  a  species, 

lex  loci  solutionis. 

The  lex  fori  has  been  previously  mentioned.  All  of  thes& 
terms  are  in  current  use,  except  only  the  lex  ligeantiae,  which 
is  suggested  as  conveniently  descriptive  of  the  law  of  the 
country  to  which  a  person  owes  national  allegiance ;  a  law 
which,  in  the  opinion  of  the  school  of  jurists  now  predominant 
on  the  Continent,  ought  to  decide  many  of  the  questions 
which  have  usually  been  determined  by  the  lex  domicilii  ^ 


*  Cf .  Codice  Civile,  arts.  6-9.  This  doctrine,  it  will  be  observed,  though 
presenting  some  analogies  to  that  of  the  '  personality  of  laws,'  explained 
at  p.  401,  is  by  no  means  identical  with  it. 

Ddz 


404 


THE   APPLICATION    OF    LAW. 


Classifica- 
tion of 
nomencla- 
ture. 


The  selection  from  this  list  of  the  lex  which  is  properly 
applicable  to  the  decision  of  questions  of  a  particular 
class,  those  relating  for  instance  to  marriage,  to  minority, 
or  to  bankruptcy,  is  guided  in  each  country  by  the  laws 
of  that  country  \  There  is  however  a  considerable  general 
resemblance  between  the  rules  of  different  systems  of 
positive  law  upon  these  points;  and  positive  law  is  more 
inclined  with  regard  to  such  questions  than  to  others  to 
pay  deference  both  to  the  positive  law  of  foreign  countries, 
and  to  the  theories  of  such  experts  as  have  written  upon 
the  subject  from  the  point  of  view  of  propriety  and 
convenience.  The  assimilation  thus  produced  of  positive 
systems  to  one  another  and  to  the  theories  of  experts 
has  led  to  an  erroneous  impression  that  there  exists  some- 
thing like  a  common  law  of  civilised  nations  upon  the 
subject  ^  instead  of,  as  is  really  the  case,  a  gradual  approxi- 
mation of  national  practice,  guided  to  some  extent  by 
a  growing  body  of  theory  ^  Some  writers  have  indeed 
been  led  so  far  astray  as  to  assert  the  invalidity  of  any 
national  laws  which  do  not  conform  to  their  views  upon 
the  subject*. 

The  body  of  principles  adopted  in  positive  systems,  or 
recommended  by  theorists,  for  the  selection  of  the  terri- 


'  Cf.  In  re  Hawthorne,  L.  R.  23  Ch.  D.  748:  sometimes  by  express 
enactment,  as  in  the  Codice  Civile,  in  the  Einfuhrungsgesetz  of  the 
German  Civil  Code,  and  in  the  Bills  of  Exchange  Act,  1882. 

^  Conferences,  held  at  the  Hague  in  1893  and  succeeding  years,  at 
which  most  of  the  European  powers,  as  also  Japan,  though  not  Great 
Britain,  were  diplomatically  represented,  have  resulted  in  the  signature 
of  eight  treaties  codifying,  so  far  as  the  signatories  are  concerned,  large 
portions  of  Private  International  law.  Treaties  with  similar  objects 
have  also  been  entered  into  by  several  South  American  states  as  a  result 
of  the  Congress  held  at  Montevideo  in  1 888.  See  Revue  de  Droit  Intemat., 
XXV.  p.  521,  xxviii.p.  573;  lb.,  2mes^rie,t.  iv.  p.  485,  vi.  p.  517,  vii.  p.  646; 
Bulletin  Argent,  de  Droit  International  priv^,  1905,  p.  377. 

'  This  error  is  well  exposed  by  Lindlej',  L.  J. :  'It  is  all  very  well  to 
say  that  International  law  is  one  and  indivisible,'  &c..  Ex  parte  the 
Union  Bank  of  Australia  [1892]  i  Ch.  226. 

*  E.  g.  Struve,  §  9.  37.   Cf.  Ex  parte  Blain,  12  Ch.  D.  522. 


NOMENCLATURE.  405 

torial  '  lex '  which  is  appropriate  to  the  decision  of  any    ch.  xvm 
given  question  of  private  law,  has  been  called  by  many 
names,  the  variety  of  which  attests  the  obscurity  which 
has  involved  the  true  nature  of  the  subject.    They  may  be 
reduced  to  seven  classes. 

1.  The  controversy  having  first  been  raised  with  refer- Statutes, 
ence  to  the  competing  claims  of  the  'statuta'  of  different 
Italian  cities,  the  whole  topic  was  treated  from  this  point 

of  view.  The  example  set  by  Bartolus  in  his  comment 
on  the  code  in  the  fourteenth  century*  was  followed  by 
a  series  of  writers  such  as  Halbritter,  who  wrote  'De 
Statutis*  in  1545  ^  and  John  Voet,  who  wrote  in  1698  ^ 
As  recently  as  1823  J.  Henry  published  a  'Treatise  on  the 
Difference  between  Personal  and  Real  Statutes ' ;  and  a 
'  Traite  des  statuts,  lois  personnelles  et  reelles,  et  du  droit 
international  prive,'  by  M.  de  Chassat,  appeared  in  1845. 

2.  A  more  descriptive    name  for  such  discussions  was  Conflict, 
suggested  in  1653  by  Rodenburg,  who  prefixed  to  his  work 

on  the  law  of  married  people  a  tract  entitled  'de  iure 
quod  oritur  ex  statutorum  vel  consuetudinum  discrepantium 
conflictu^'  Paul  Voet  followed,  in  1661,  with  a  treatise 
'de  statutis  eorumque  concursu';  Huber,  in  1686,  with 
his  famous  chapter  'de  conflictu  legum^';  and  Hertius, 
in  1688,  with  his  tract  'de  collisione  legum".'  J.  G. 
de  Meiern  wrote  in  17 15  'de  statutorum  conflictu  eorumque 
apud  exteros  valore';  Ham,  in  1792,  'de  statutorum 
collisione  et  praef erentia ' ;  Wachter,  in  1841  and  1842, 
'Uber  die  Collision  der  Privatrechtsgesetze  verschiedener 


*  Ad  1.  'cunctos  populos,'  i.  i. 

*  Ad  1.  'cunctos  populos,'  i.  i.   Tubingae. 

*  In  his  Comment,  ad  Pandectas,  lib.  i.  tit.  4.  pars  2. 

*  The  tract  is  thus  referred  to  on  the  general  title-page.  Its  own  sub- 
title is  *  De  iure  quod  oritur  ex  diversitate  statutorum.' 

*  In  his  Praelectiones  iuris  Romani,  pars  ii.  ad  Pand.  lib.  i.  tit.  3. 
1686. 

"  Comm.  et  Opusc.  i.  p.  129. 


4o6 


THE   APPLICATION    OF    LAW. 


Extra- 
territorial 
effect. 


Applica- 
tion. 


Cbmity. 


Staaten*';  Livermore,  in .  1828,  'on  the  contrariety  of 
laws';  and  Brinkmann,  in  1831,  'von  dem  Widerspruche 
auslandischer  und  einlieimischer  Gesetze.'  Story's  'Con- 
flict of  Laws '  was  published  in  1834,  J.  Hosack's  work  of 
the  same  name  in  1847,  Wharton's  in  1872,  and  Professor 
Dicey's  'Digest  of  the  Law  of  England  with  reference  to 
the  Conflict  of  Laws,'  in  1896. 

3.  The  fact  that  effect  is  given  to  laws  outside  of  the 
territory  of  the  State  on  whose  authority  they  depend  is 
emphasised  in  the  titles  of  such  works  as  that  of  Cocceius, 
'de  fundata  in  territorio  et  plurium  locorum  concurrente 
potestate,'  1684^;  of  Scheinemann,  'de  auctoritate  legum 
civilium  extra  territorium  legislatoris,'  1696;  of  Seger,  'de 
vi  legum  et  decretorum  in  territorio  alieno,'  1777  ;  also  in 
Savigny's  expressions  as  to  '  die  orthchen  Granzen  ^,'  and 
Schmid's  'die  Herrschaft  der  Gesetze,  nach  ihren  raum- 
lichen  Grenzen\' 

4.  The  question  as  to  the  choice  of  the  law  to  be  applied 
becomes  prominent  in  the  treatise  of  Oerstadt,  'liber  die 
Anwendung  fremder  Gesetze,'  1822^;  in  that  of  Struve, 
*  liber  das  positive  Rechtsgesetz  in  seiner  Beziehung  auf 
raumliche  Verhaltnisse  und  liber  die  Anwendung  der 
Gesetze  verschiedener  Oerter,'  1834 ;  and  in  incidental 
expressions  occurring  in  Savigny's  System  °. 

5.  It  is  of  course  a  merely  voluntary  act  on  the  part 
of  any  State  when  it  gives  effect  to  foreign  law.    In  the 


*  See  Archiv  fiir  civ.  Praxis,  Bd.  xxiv.  p.  230,  xxv.  p.  i. 

'  Exercit.  Curios,  i.  p.  680.  '  System,  vol.  viii.  pp.  5,  8-367. 

*  The  full  title  of  his  work  is  '  Die  Herrschaft  der  Gesetze  nach  ihren 
raumlichen  und  zeitlichen  Grenzen  im  Gebiete  des  biirgerlichen  und 
peinlichen  Rechts,'  Jena,  1863.  Cf. '  Die  raumliche  Herrschaft  der  Rechts- 
normen  (ortliche  StatutenkoUision)  auf  dem  Gebiete  des  Privatrechtes,' 
F.  Bohm,  1890. 

*  Eunomia,  i.  pp.  1-105. 

'  viii.  pp.  15,  32,  109.  Cf.  Sir  H.  Maine's  definition  of  the  topic  as  'the 
conditions  on  which  one  community  will  recognise  and  apply  a  portion 
of  the  jurisdiction  of  another.' 


NOMENCLATURE.  407 

language  of  Huber, '  Rectores  imperiorum  id  comiter  agunt  ch.  xvm 
ut  iura  cuiusque  populi  intra  terminos  eius  exercita  teneant 
ubique  suam  vim'.'  Sii-  Robert  Phillimore  accordingly- 
entitled  the  volume  of  his  Commentaries  which  deals  with 
this  subject  (1861)  'On  Private  International  Law,  or 
Comity.' 

6.  Schaffner  gave  to  his  book,  published  in  1841,  a  title  Inter- 
apparently  intended  to  indicate  that  it  dealt  with  the  mode  pHvate 
in  which  rules  of  private  law  are  borrowed  by  one  State  *^^- 
from  another.     He  called  it  'die  Entwickelung  des  inter- 
nationalen  Privatrechts ' ;  and  it  was  followed  by  Pf eiffer's 

'das  Princip  des  internationalen  Privatrechts,'  1851;  by 
von  Bar's  'das  Internationale  Privat-  und  Strafrecht,'  1862 
and  (omitting  Strafrecht)  1889;  by  Asser's  'Schets  van  het 
internationaal  Privaatregt ' ;  by  von  Piittlingen's  '  HandbucH 
des  in  Oesterreich-Ungarn  geltenden  internationalen  Privat- 
rechts,' and  by  Hamaker's  tract  'het  internationaal 
Privaatregt,'  in  1878.  In  1874  there  appeared  the  'Trattato 
di  diritto  civile  internazionale '  of  Lomonaco;  and  in  1880 
the  first  volume  of  the  'Droit  civil  international^'  of 
Laurent,  and  the  '  Droit  penal  international '  of  Fiore, 
translated  by  C.  Antoine.  The  'Zeitschrift  fiir  Inter- 
nationales Privat-  und  Strafrecht'  was  founded  by  Ferd. 
Bbhm  in  1890. 

7.  In  1840  Foelix  began  a  series  of  articles  'du  conflit  Private 

des  lois  de  differentes  nations,  ou  du  droit  international',' national 

law. 


'  Prael.  iuris  Romani,  pars  ii.  ad  Pandect,  lib.  i.  tit.  3. 

-  This  term  was  firfetsuggested  by  Portalis,  in  a  Report  to  the  Acad^mie 
des  Sciences  Morales  et  Politiques,  Comptes  rendus,  1843,  t.  i.  p.  449- 

^  In  the  Revue  jfitrangfire  et  Frangaise  de  Legislation,  t.  vii.  p.  81, 
Fcnlix  begins,  'On  appelle  droit  international  I'ensemble  des  regies  re-* 
connues  comme  raison  de  decider  des  conflits  entre  le  droit  priv6  des 
di  verses  nations.'  He  goes  on  to  blame  Wheaton  for  using  the  term 
'  droit  international '  as  equivalent  to  '  droit  des  gens,'  i.  e.  to  public  inter- 
national law  ! 


4o8 


THE   APPLICATION    OF   LAW. 


CH.  xvm.  and  re-published  them  m  1843  as  the  'Traite  du  droit 
international  prive,  ou  du  conflit  des  lois  en  matiere  de 
droit  prive*.'  The  term  was  adopted  in  1844  by  Chancellor 
Kent,  who  derives  it  from  Victor  Faucher  ^,  and  was  known 
in  1847  to  Mr.  Hosack^  Mr.  Westlake  followed,  in  1858, 
with  his  'Private  International  Law,  or  the  Conflict  of 
Laws';  M.  Fiore,  in  1869,  with  his  'Diritto  internazionale 
privato,  o  principii  per  risolvere  i  conflitti  tra  legislazioni 
diverse  in  materia  di  diritto  civile  e  commerciale ' ;  M.  Haus 
with  'Le  droit  prive  qui  regit  les  etrangers  en  Belgique, 
ou  du  droit  des  gens  prive,  considere  dans  ses  principes 
fondamentaux  et  dans  ses  rapports  avec  les  lois  civiles 
des  Beiges,'  1874;  M.  Brocher  with  his  'Nouveau  traite 
du  droit  international  prive,'  1876;  and  Mr.  Foote  with 
his  'Private  International  Jurisprudence,'  1878.  In  1874 
M.  Clunet  estabhshed  at  Paris  the  'Journal  du  droit 
international  prive.'  His  example  has  been  followed  in 
Germany  and  in  the  Argentine. 


Objec- 
tions 

to  Sta- 
tutes, 


Objections,  well  and  ill  founded,  have  been  urged  against 
each  and  all  of  these  phrases.  The  nomenclature  of  the 
'Statutes,'  an  attempt  to  resolve  a  legal  into  a  merely 
grammatical  question,  is  indeed  obsolete.  Of  the  other 
phrases,  one  is  distinctly  misleading,  while  the  rest  are 
rather  inadequate  than  erroneous. 


to  Con- 
flict, 


Those  who  deny  that  a  'Conflict  of  laws'  ever  really 
takes  place  are  right  if  they  mean  only  that  the  authority 
of  a  domestic  can  never  be  displaced  by  that  of  a  foreign 
law.  It  cannot  however  be  denied  that,  although  each 
State  is  free  to  adopt  for  the  decision  of  any  given 
question  its  own  or  foreign  law,  and  between  various 
foreign  laws  to  choose  that  which  it  prefers,  yet  the 
•rival  claims  of  these  bodies  of  law  do  present  themselves 
to  the  legislature  or  the  court  as  competing  or  conflicting. 


*  See  §§  I,  14. 


I  Comm.,  2. 


Op.  cit. 


OBJECTIONS   TO    NOMENCLATURE.  409 

There  is  no  strife  for   the   mastery,  but   there   is  a  com-    ch.  xviii. 
petition  of  opposite  conveniences.    The  phrase  is  inadequate, 
because  it  does  not  cover  questions  as  to  jurisdiction,  or 
as  to  the  execution  of  foreign  judgments. 

Such  expressions  as  seem  to  attribute  an  extraterritorial  to  Extra- 
supremacy,  '  Herrschaf t,'  to  any  system  of  law,  are  more^^y^" 
obviously  open  to  censure,  as  being  inconsistent  with  the 
absolute  sovereignty  of  each  State  within  its  own  territory. 

When,  on  the  other  hand,  the  theory  of  '  Comity '  is  to  Comity, 
attacked,  on  the  ground  that  a  Court,  in  applying  a 
particular  'lex,'  is  guided  not  by  courtesy  but  by  legal 
principle,  it  must  not  be  forgotten  that,  although  the 
Courts  of  each  State  are  guided  by  the  law  of  the  State, 
the  State  in  making  that  law  is  guided  not  by  the  law 
of  Nations,  but  by  general  considerations  of  equity,  ac- 
companied by  some  expectation  of  reciprocity.  'Comity' 
thus  expresses  the  truth  that  the  adoption  of  this  or  that 
rule  by  a  State  is  a  matter  of  indifference  to  international 
law.  The  new  Itahan  school  would  indeed  deny  this 
proposition,  asserting  that  a  State,  in  applying  foreign  law 
to  certain  sets  of  circumstances,  is  but  complying  with  an 
international  duty  of  'perfect  obligation\' 

The    phrase    '  Application    of    law,'   '  Anwendung    der  to  Appli- 

...  ,  cation, 

Gesetze,'  is  liable  to  no  objection  except  that  it  is  perhaps 

too  wide;  embracing,  as   it  may,  all   the    topics  of    the 

present  chapter, 

*  International  Private  law,'  though  a  dangerously  am-  to  Inter- 
biguous  term,  is  not   incapable  of    bemg   understood  tOp^^*^^ 
denote  the  mode  in  which  rules  of  private  law  are  borrowed  law, 
by  the  Courts  of  one  State  from  those  of  another. 

'  See  a  Report  by  Signor  Mancini,  sometime  Minister  of  Justice,  to  the 
Institut  de  Droit  International,  Revue  de  Droit  International,  t.  vii. 
PP-  333.  337.  362.  Cf.  von  Bar,  in  von  Holtzendorff's  Encyclopadie, 
System,  p.  68 1. 


4IO 


THE   APPLICATION    OF   LAW. 


CH.    XVIII. 

to  Private 
Interna- 
tional law. 


The  con- 
tents of 
the  topic. 


The  transposed  version  of  this  term  as  'Private  Inter- 
national law'  is  wholly  indefensible.  Such  a  phrase  should 
mean,  in  accordance  with  that  use  of  the  word  'inter- 
national '  which,  besides  being  well  estabUshed  in  ordinary 
language,  is  both  scientifically  convenient  and  etymo- 
logically  correct,  'a  private  species  of  the  body  of  rules 
which  prevails  between  one  nation  and  another.'  Nothing 
of  the  sort  is  however  intended;  and  the  unfortunate 
employment  of  the  phrase,  as  indicating  the  principles 
Which  govern  the  choice  of  the  system  of  private  law 
applicable  to  a  given  class  of  facts,  has  led  to  endless 
misconception  of  the  true  nature  of  this  department  of 
legal  science  ^  It  has  also  made  it  necessary  to  lengthen 
the  description  of  International  law,  properly  so  called, 
by  prefixing  to  it  the  otherwise  superfluous  epithet '  public' 

It  is  most  important,  for  the  clear  understanding  of  the 
real  character  of  the  topic  which  for  the  last  forty  years 
has  been  misdescribed  as  '  Private  International  law,'  that 
this  barbarous  compound  should  no  longer  be  employed. 
Nor  is  its  abandonment  less  desirable  with  a  view  to  the 
rehabilitation  of  the  term  *  international '  for  the  scientific 
purpose  for  which  it  was  originally  coined  ^ 

The  topic  in  question  consists  of  the  body  of  rules  which 
prevail  in  a  given  country,  or  given  countries,  or  which 


*  Cf.,  e.  g.  in  re  Queensland  Co.  [1892]  i  Ch.  219. 

^  Supra,  p.  380.  Mr.  Frederic  Harrison,  in  two  singularly  able  articles 
in  the  Fortnightly  Review  for  1879,  suggested  as  a  substitute  for 
'Private  International  law'  the  term  ' Intermunicipal  law.'  This  is 
surely  no  improvement,  since  '  municipal,'  in  accordance  with  established 
use,  is  either  equivalent  to  'national'  or  relates  to  civic  organisation. 
'American  Interstate  law'  is  the  not  inappropriate  title  of  a  work  by 
David  Rorer,  which  appeared  at  Chicago  in  1879  and  1893.  Inasyllabusof 
lectures  for  1886,  Mr.  Harrison  proposed  to  speak  of  the  '  interterritorial 
apphcation  of  law.'  For  a  defence  of  the,  one  would  have  supposed, 
obviously  inadequate  term '  Diritto  privato  universale  dello  straniero,'  in- 
vented by  Professor  Cimbali ,  of  Macerata ,  and  a  curious  polemic  waged  by 
him  upon  the  subject  with  other  Italian  professors,  see  his '  Di  una  nuova 
denominazione  del  cosiddetto  Diritto  lutemazionale  privato/  1893. 


SUGGESTED   NOMENCLATURE.  411 

theorists  think  ought  to  prevail  generally,  as  to  the  selec-  ch.  xviii. 
tion  of  the  law  to  be  applied  in  cases  where  it  may  be 
doubted  whether  the  domestic  or  a  foreign  law,  and,  in 
the  latter  case,  which  foreign  law,  is  appropriate  to  the 
facts.  It  is  a  body  of  rules  for  finding  rules.  With 
this  topic  it  is  usual  to  combine  that  of  the  choice  of  the 
competent  forum^  and  also  that  of  the  effect  to  be  given  to 
a  foreign  judgment. 

The  group  of  topics  is  undoubtedly  hard  to  name.  Of  The  choice 
the  old  names,  'the  Conflict  of  laws'  is  probably  the  best, ^  a  name. 
*  Private  International  law '  is  indubitably  the  worst.  '  The 
Application  of  Foreign  law,'  or  '  the  Extraterritorial  Recog- 
nition of  rights,'  may  be  suggested  as  at  any  rate  not 
misleading,  while  the  latter  phrase  might  be  useful  as 
calling  attention  to  the  fact  that  what  really  happens 
when  a  law  seems  to  obtain  an  extraterritorial  effect, 
is  rather  that  rights  created  and  defined  by  foreign  law 
obtain  recognition  by  the  domestic  tribunal  \  Thus  it  is 
that  the  status  of  marriage  will  be  recognised  as  resulting 
from  an  observance  of  the  formalities  prescribed  by  the 
l&c  loci  celebrationis^  and  an  obligation  resulting  from 
the  judgment  of  a  competent  Court  in  one  State  will 
be  enforced   by  the   Courts  of  another  ^    Xo  name   has 


*  In  addition  to  the  terms  in  the  text,  as  it  originally  appeared  in 
1880,  the  terms  'Droit  priv^  (ou,  selon  le  cas,  p<5nal)  extraterritorial' 
were  suggested  by  the  present  writer  in  the  Revue  de  Droit  International 
forthesameyear.t.  xii.p.  581.  In  1883  a  work  appeared  at  Madrid, en  titled 
'  Principios  de  derecho  intemacional  privado,  o  de  derecho  extraterritorial 
de  Europa  y  America  en  sus  relaciones  con  el  derecho  civil  de  Espafia,' 
by  D.  Manuel  Torres  Campos.  On  this  phraseology,  see  now  Professor 
Dicey,  Conflict  of  Laws,  1896,  p.  15. 

^  The  theory  of  the  text,  it  will  be  observed,  assumes  the  foundation  of 
this  whole  topic,  whether  it  be  described  as  '  the  application  of  foreign 
law,'  or  the  'extraterritorial  recognition  of  rights,'  to  be  that  of  '  vested 
rights';  a  doctrine  which  appears  to  the  autlior  to  remain  unshaken  by 
the  numerous  attacks  which  have  been  directed  against  it.  It  is  well 
stated  by  Huber,  'Subiectio  hominum  infra  leges  cuiusque  territorii, 
quamdiu  illic  agunt,  quae  facit  ut  actus  ab  initio  validus,  aut  nuUus,  alibi 
quoque  valere,  aut  non  valere,  non  nequeat.'  Prael.  ad  Pand.  i.  3.  §  15. 
Cf.  Wachter,  u.  s. 


412 


THE   APPLICATION   OF   LAW. 


CH.  XVIII.    yet  been   suggested  which   satisfactorily  covers   the  two 
topics  of  'Forum'  and  'Lex.' 


Interpre- 
tation. 


Legal. 


Doctrinal. 


III.  In  order  that  the  competent  Court  may  rightly 
apply  the  appropriate  law,  it  is  necessary  that  the  words 
of  the  law  shall  be  properly  construed.  'Interpretation' 
is  thus  a  third,  though  a  very  subordinate,  topic  of  the 
apphcation  of  law.  It  is  said  to  be  either  'legal,'  which 
rests  on  the  same  authority  as  the  law  itself,  or  '  doctrinal,' 
which  rests  upon  its  intrinsic  reasonableness. 

'  Legal  interpretation  '  may  be  either  '  authentic,'  when  it 
is  expressly  provided  by  the  legislator \  or  'usual,'  when 
it  is  derived  from  unwritten  practice. 

'Doctrinal  interpretation'  may  turn  on  the  meaning  of 
words  and  sentences,  when  it  is  called  '  grammatical,'  or 
on  the  intention  of  the  legislator,  when  it  is  described  as 
'  logical.'  When  logical  interpretation  stretches  the  words 
of  a  statute  to  cover  its  obvious  meaning  it  is  called 
'extensive';  when,  on  the  other  hand,  it  avoids  giving 
full  meaning  to  the  words,  in  order  not  to  go  beyond  the 
intention  of  the  legislator,  it  is  called  'restrictive.' 


§  2.   Public  Law. 

The  appli-  It  is  chiefly  in  the  criminal  branch  of  Public  law  that 
criminal  questions  of  the  kind  now  under  consideration  present 
law.  themselves  for  solution. 


The 
Forum. 


I.  The  'forum'  which,  ratione  territorii,  is  properly 
seized  of  the  punishment  of  an  offence  has  been  at  different 
times  asserted  to  be  —  that  of  the  nation  of  which  the 
offender  is  a  subject,  that  of  the  domicil  of  the  offender. 


'  As  in  what  are  called  the  '  interpretation  clauses '  of  a  modern  Act  of 
Parliament,  many  of  which  are  now  superseded  by  the  comprehensive 
Interpretation  Act,  1889.  By  since  repealed  sections  of  the  Prussian 
Landrecht  (Einl.  §§  47,  78),  judges  were  directed  to  consult  the  '  Gesetz- 
commission'  as  to  the  interpretation  of  that  Code,  and  to  follow  its 
rulings.   Cf.  Cod.  i.  14.  9  and  12.   Cf.  also  Dalloz,  s.  v.  'Lois,'  art.  438. 


THE   CRIMINAL   FORUM.  413 

that  of  the  nation  injured,  that  of  the  place  of  the  arrest   ch.  xvin. 
or  detention  of  the  offender,  and  that  of  the  place  where 
the   offence  was  committed.    These  may  be  respectively- 
described  as  the 

forum  ligeantiaey 

forum  domicilii^ 

forum,  civitatis  laesaCy 

forum,  deprettensionis^  or  fortuitum^ 

forum  delicti  commissi. 

The  last-mentioned  'forum,'  which  was  indeed  the  first 
to  assert  its  claims,  has  in  recent  times  nearly  superseded 
the  others,  as  being  the  most  compatible  with  modern 
ideas  of  the  nature  of  sovereignty.  Four  theories  as  to 
the  competent  '  forum '  are  heard  of  at  the  present  day. 

i.  What  is  known  as  the  '  territorial  theory  of  jurisdic-  The  terri- 
tion,'  founded  upon  the  competency  of  the  forum  delicti  f;^^^^^^ 
commissi^  asserts  that  each  State  may,  and  ought  to,  deal 
with  all  persons,  be  they  subjects  or  aliens,  who  commit 
offences  within  its  territory,  or  on  board  of  its  ships,  against 
its  criminal  law.  This  proposition,  though  indisputably 
true,  is  as  indisputably  inadequate  to  secure  the  due 
punishment  of  crime.  Its  insufficiency  to  provide  for  the 
punishment  of  criminals  who  have  escaped  from  the  terri- 
tory in  which  their  offence  was  committed  is  partially 
redressed  by  treaties  of  Extradition,  under  which  such 
offenders  are  returned  to  the  forum  delicti;  but  it  still 
needs  supplementing  by  other  principles. 

ii  According  to  'the  personal  theory  of  jurisdiction,' The  pr- 
each State  has  a  right  to  the  obedience  of  its  own  subjects,  J^^^y 
wheresoever  they  may  be.  It  follows  that  a  subject  may 
be  tried  on  his  return  to  his  own  country,  or  even  in 
his  absence,  for  an  offence  against  its  laws  committed 
while  within  the  territory  of  another  State.  This  second 
theory,  which  asserts  the  claim  of  the  forum  ligearUiae^ 


414  THE  APPLICATION   OF   LAW. 

CH.  xviii.  is  very  variously  applied  in  practice.  England  and  the 
United  States  use  it  but  sparingly,  as  introducing  a  very 
limited  list  of  exceptions  to  the  standard  principle  of 
territorial  jurisdiction  \  It  is  thus  provided  by  Act  of 
Parliament  that  a  British  subject  may  be  indicted  for 
murder,  manslaughter,  or  bigamy,  whether  committed 
within  the  King's  dominions  or  without,  and  may  be 
tried  'in  any  place  in  England  or  Ireland  in  which  he 
shall  be  apprehended  or  be  in  custody  ^' 

The  continental  States  agree  in  punishing  offences 
committed  abroad  by  a  subject  against  the  government 
or  coinage  of  the  country  to  which  he  belongs,  but  differ 
•widely  in  their  treatment  of  offences  of  other  kinds.  The 
French  Code  of  1808  punished  offences  committed  abroad 
by  Frenchmen  against  Frenchmen  ^  The  Code  for  the 
German  Empire  punishes  acts  of  its  subjects  which  are 
criminal  in  the  country  where  they  were  committed  as 
well  as  in  Germany  ^  The  Italian  Code  of  1889^  and 
the  Austrian  draft  Code  of  1867  ®  contain  similar  pro- 
visions, with  reference  to  offences  of  a  certain  gravity. 
The  Bavarian  Code  of  1861  stated  the  liability  of  subjects 
without  any  such  reservation  ^ ;  and  the  French  Code, 
as  amended  in  1866,  provides  that  'tout  Frangais  qui 
hors  du  territoire  de  la  France  s'est  rendu  coupable  d'un 
crime  puni  par  la  loi  fran^aise  peut  etre  poursuivi  et 
juge  en  France^.' 

This  enactment  is  in  accordance  with  an  opinion  given 


•  Cf.  the  ZoUverein,  r  Swab.  96. 

^  24  &  25  Vict.  c.  100,  ss.  9,  57.  Cf.  as  to  Treason,  35  H.  VIII.  c.  2; 
5  &  6  Ed.  VI.  c.  11;  7  Anne,  c.  21.  See  further.  Sir  H.  Jenkyns,  British 
Rule  and  Jurisdiction,  &c.,  1902,  pp.  136-140. 

'  Code  d'instruction  criminelle,  art.  7.  *  Art.  4.  3. 

5  Art.  5.  «  Art.  4- 

'  Inlander  unterliegen  den  Bestimmungen  der  Bayerischen  Strafge- 
setze  wegen  aller  von  ihnen  im  In-  oder  Auslande  veriibten  strafbaren 
Handlungen,  art.  10. 

*  Arts.  5-7. 


THEORIES   OF   JURISDICTION.  415 

to  the  government  by  the  Cour  de  Cassation  in  1845  ch.  xviii. 
and  approved  by  twenty-four  Courts  of  Appeal  and  six 
Faculties  of  law,  against  the  exclusively  territorial  char- 
acter of  penal  jurisdiction.  '  Ce  qui  est  vrai,'  said  the 
Court,  'c'est  que  le  droit  de  punir,  au  nom  de  la  loi 
frangaise,  ne  peut  s'exercer  qu'en  France ;  ce  qui  est  errone, 
c'est  que  Facte  punissable,  commis  sur  le  sol  etranger, 
ne  puisse,  dans  aucun  cas,  6tre  regi  par  cette  loi*.' 

The  forum  ligeantiae  is  not  concurrent  with,  but 
excludes,  the  forum  delicti  in  the  case  of  Europeans 
whose  governments  have  capitulations  to  that  effect  with 
the  governments  of  Oriental  States. 

iii.  What  may  be  described  as  '  the  theory  of  self-  The  theory 
preservation '  is  in  some  continental  systems  considered  ^r^ation^" 
in  certain  cases  to  confer  a  jurisdiction  which,  since  it 
is  neither  '  territorial '  nor  '  personal,'  has  been  called 
'quasi-territorial.'  It  allows  that  the  Courts  of  a  State 
may  punish  offences  although  committed  not  only  outside 
of  its  territory  but  also  by  persons  who  are  not  its  subjects. 
Such  a  jurisdiction,  which  might  perhaps  be  described 
as  claimed  for  the  forum,  civitatis  laesae^  is  usually  asserted 
with  reference  to  offences  against  the  goverimient  of  the 
State,  or  against  its  public  credit. 

The  French  Code,  as  revised  in  1866,  provides  for  the 
trial  and  punishment  of  any  aUen  who,  having  committed 
abroad  an  offence  '  attentatoire  a  la  stirete  de  I'^tat,  ou  de 
contrefagon  du  sceau  de  I'fitat,'  or  against  the  French 
coinage  or  paper  currency,  shall  afterwards,  voluntarily 
or  by  means  of  extradition,  come  within  the  French 
territory  I  The  German  Code  of  1872  ^  and  the  Italian 
Code  of    1889*,  contain    similar    articles.    The  Bavarian 

»  Cited  by  M.  Brocher,  Rev.  de  Droit.  Int.  vii.  p.  46. 
»  Art.  7. 

'  Arts.  4.  I.  By  the  Strafprozessordnung  of  1877,  art.  9,  the  accused 
may  be  condemned  though  absent  from  German  territory. 

*  Art.  4-  . 


4i6 


THE   APPLICATION   OF   LAW. 


CH.  XVIII.  Code  of  1861  went  further;  providing  also  for  the 
punishment  of  offences  committed  abroad  by  aliens  against 
Bavarian  subjects,  'in  the  absence  of  anything  to  the 
contrary  in  the  treaties  of  the  State  or  the  principles 
of  International  law*.' 

At  its  Brussels  Session,  in  1879,  the  '  Institut  de  Droit 
international,'  after  much  discussion,  adopted  the  following 
resolution  upon  this  subject :  — '  Tout  etat  a  le  droit  de 
punir  les  faits  commis  meme  en  dehors  de  son  territoire 
et  par  des  etrangers  en  violation  de  ses  lois  penales, 
alors  que  ces  faits  sont  une  atteinte  a  I'existence  sociale 
de  I'etat  en  cause,  et  compromettent  sa  securite,  et  qu'ils 
ne  sont  point  prevus  par  la  loi  penale  du  pays  sur  le 
territoire  duquel  ils  out  eu  lieu.'  The  Institut  rejected 
a  resolution  extending  the  right  to  other  cases  ^ 


The  theory 
of  cosmo- 
politan 
justice. 


iv.  The  theory  which  may  be  described  as  one  '  of 
general  supervision,'  or  'of  cosmopoUtan  justice,'  looks 
merely  to  the  forxmx  deprehensionis^  which  we  have 
also  called  fortuitum,  ascribing  to  each  State  the  right 
of  punishing  any  criminal  who  may  come  into  its  power. 

This  theory  has  long  found  favour  with  reference  to 
pirates,  on  the  ground  that  they  have  thrown  off  their 
subjection  to  any  political  authority,  but  some  writers 
have  claimed  for  it  a  far  wider  application.  Vattel,  for 
instance,  makes  an  exception  to  the  rule  of  exclusively 
territorial  jurisdiction  in  the  case  of  '  ces  scelerats  qui, 
par  la  qualite  et  la  frequence  habituelle  de  leurs  crimes, 
violent  toute  stirete  publique  et  se  declarent  les  ennemis 
du  genre  humain.'    He  continues:    'Les    empoisonneurs. 


*  Art.  12.  A  similar  provision  in  the  Penal  Code  of  Mexico,  art.  186, 
making  a  '  Delito'  committed  in  a  foreign  country  by  a  foreigner  against 
a  Mexican  punishable  in  Mexico  and  according  to  its  laws,  gave  rise  in 
1886  to  the  'Cutting  case,'  on  which  see  the  official  report  of  Mr.  J.  B. 
Moore  to  the  U.  S.  Secretary  of  State,  and  Revue  de  Droit  International, 
t.  XX.  p.  559. 

'  Annuaire,  iii.  p.  281. 


THEORIES   OF   JURISDICTION.  417 

les  assassins,  les  incendiaires  de  profession,  peuvent  etre  ch.  xvm. 
extermines  partout  ou  on  les  saisit;  car  ils  attaquent  et 
outragent  toutes  les  nations,  en  »foulant  aux  pieds  les 
fondements  de  leur  stirete  commune.  C'est  ainsi  que  les 
pirates  sont  envoyes  a  la  potence  par  les  premiers  entre 
les  mains  de  qui  ils  tombent.  Si  le  souverain  du  pays 
ou  des  crimes  de  cette  nature  ont  ete  commis  en  reclame 
les  auteurs  pour  en  faire  la  punition,  on  doit  les  lui  rendre, 
eomme  a  celui  qui  est  principalement  interesse  a  les 
punir  exemplairement  \'  The  Austrian  draft  Code  ac- 
cordingly provides  for  the  punishment  of  serious  offences 
committed  abroad  by  aliens,  subject  to  the  stipulations 
of  any  treaty  to  the  contrary^;  and  the  Italian  Code  of 
1889  contains  a  similar  provision,  in  case  the  State  to 
which  the  alien  belongs  shall  have  refused  to  take  him 
in  extradition,  with  a  view  to  punishment  \ 

It  is  obvious  that  the  adoption  by  a  State   of  one  orCombina- 
another   of  the  four   current  theories  of  jurisdiction,  or  theories  of 
of  a  combination  of   several   of   them,  will  determine  notj^"^^'^' 

'  tion. 

only  the  exercise  of  its  own  criminal  jurisdiction  with 
reference  to  a  given  set  of  facts,  but  also  its  recognition 
of  the  rightfulness  of  the  exercise  by  other  States  of 
their  jurisdiction  with  reference  to  the  same  state  of  facts. 
In  cases  where  it  recognises  the  concurrent  competence 
of  several  States,  it  may  or  may  not  regard  the  decision 
of  the  Courts  of  any  one  of  them  as  final,  so  as  to  give 
an  offender  the  benefit  of  the  maxim,  'ne  bis  in  idem.' 
Provisions  to  this  effect  are  not  uncommon  in  continental 
Codes  ^     In    Enghsh    law  there    is    some  authority  for 


1  Droit  des  Gens,  i.  §  233.  Cf.  von  Holtzendorff,  Die  Auslieferung  der 
Verbrecher,  1881,  p.  7. 

*  1868,  art.  6. 
3  Art.  6. 

*  Code  d'ins.  crim.,  art.  7;  Loi  de  1886,  art.  5;  German  Code,  art.  5.  7. 
But  cf.  Austrian  Code,  art.  30;  Italian  Code,  art.  8;  and  Flore,  Droit 
p^nal  international,  i.  p.  161. 

_  E  e 


4l8  THE   APPLICATION    OF   LAW. 

CH.  xvm.    saying  that  a  plea   of  *  autrefois  acquit '  or  '  convict '  in 
a  competent  foreign  court  is  a  good  defence*. 

The  readiness,  or  disinclination,  of  a  State  to  surrender 
its  own  subjects  in  extradition  is  another  result  of  the  view 
which  it  adopts  with  reference  to  criminal  competence. 
The  continental  nations,  among  which  the  doctrine  of 
'personal  jurisdiction'  is  fully  entertained,  refuse  extra- 
dition of  their  own  subjects;  while  England  readily  sur- 
renders its  subjects  because  it  is  not,  as  a  rule,  prepared  to 
punish  them  for  offences  committed  outside  of  the  country. 

The  Lex.  II.  Questions   as  to  the   appropriate    '  Lex '   are  not  of 

frequent  occurrence  in  criminal  law.  Of  the  four  classes 
of  such  questions  which  may  conceivably  be  raised,  those 
as  to  (i)  Concentricity,  and  (ii)  Time  ^  no  doubt  occasionally 
occur,  but  questions  of  (iii)  Race,  and  (iv)  Place,  are  hardly 
separable  from  the  question  of  'Forum.'  The  'comity' 
which  often  determines  a  controversy  in  private  law  in 
accordance  with  rules  borrowed  from  a  foreign  system  has 
no  place  in  the  trial  of  crimes.  No  State  wUl  undertake 
to  administer  the  criminal  law  of  another,  though  it  may 
sometimes  go  so  far  as  to  inquire  into  the  amount  of 
punishment  to  which  a  crime  would  be  liable  according 
to  the  law  of  the  place  where  it  was  committed. 

The  topics  of  criminal '  forum '  and  '  lex '  have  sometimes 
been  treated  in  conjunction  with  the  analogous  topics  of 
private  law,  as,  for  instance,  by  von  Bar  in  his  'Inter- 
nationales Privat-  und  Strafrecht^'  They  have  indeed 
much  in  common,  and  the  title  of  von  Bar's  work  would 
be  objectionable  only  on  the  ground  of  ambiguity,  if  it 
did  not  seem  to  lend  itself  to  the  support  of  statements  by 


'  See  R.  V.  Hutchinson,  29  C.  II,  cited  in  Beake  v.  Tyrrell,  i  W.  &M., 
I  Shower,  6,  and  in  R.  v.  Roche,  1775,  i  Leach,  135.  Cf.  Bull,  N.  P.  245; 
Arch  bold,  Crim.  Pract.  p.  121. 

'  E.  g.  German  Code,  art.  2. 

'  The  edition  of  1889  is  restricted  to  Privatrecht. 


INTERNATIONAL   LAW.  419 

other  writers  which  involve  the  whole  subject  in  hopeless   ch.  xviii. 
confusion. 

It  may  perhaps  be  assumed  that  the  reader  who  has 
followed  the  argument  of  the  last  few  pages  will  at  once 
detect  the  astonishing  inconsistency  of  view  which  is 
betrayed  by  the  following  extract  from  a  work  of  de- 
servedly high  authority.  'On  appelle,'  says  M.  Fcelix, 
'droit  international  prive  I'ensemble  des  regies  d'apres 
lesquelles  se  jugent  les  conflits  entre  le  droit  prive  des 
diverses  nations ;  en  d'autres  termes,  le  droit  international 
prive  se  compose  des  lois  civiles  ou  crimineUes  d'un  etat 
dans  le  territoire  d'un  etat  etranger'.' 

It  would  not  be  too  much  to  say  that  '  Private  Inter- 
national law,'  if  thus  conceived  of,  is  neither  '  private '  nor 
'  international '  in  the  sense  in  which  either  of  those  terms 
are  usually  and  properly  employed  in  Jurisprudence. 

III.  What  was  said  of   the   'Interpretation'  of  Private, Interpre- 
will  apply  also  to  that  of  Public  law. 

§  3.   International  Law. 

I.  No   question  of  '  Forum '  can  arise  in  International  The  appli- 
law,  of  which  it  is  an  essential  principle  that  each  nation  interna- 
ls the  judge  of  its  own  quarrels,  and  the  executioner  of*'°°^^^^- 
its  own  decrees. 

II.  The  question  of  'Lex'  does  indeed  arise,  but  in  a  The  Lex. 
way  that  presents   but   a  slight  analogy  to  anything  in 


'  Droit  International  Prive,  §  1 .  M.  von  Bar,  who  defends  his  com- 
bination of  the  two  topics  by  the  authority  of  R.  von  Mohl,  Staatsrecht, 
Volkerrecht  u.  Politik,  p.  682,  endeavours  to  avoid  the  difficulties  which 
his  title  raises  by  distinguishing  between  '  Internationales  Recht '  and 
'  Volkerrecht.'  The  former  term  he  employs  to  signify  a  genus,  of  which 
the  two  species  are  respectively  '  Volkerrecht,'  by  which  he  means  Public 
International  law,  and  '  Internationales  Privatrecht.'  Mr.  Westlake,  who 
follows  Fcplix,  frankly  admits,  in  his  second  edition,  p.  5,  that  he  is  using 
the  term  'private'  in  a  sense  which  has  no  relation  to  the  division  of 
national  law  into  'public'  and  'private.' 


420 


THE   APPLICATION   OF   LAW. 


CH.  XVIII.  either  department  of  Municipal  law.  It  is  merely  whether 
a  given  set  of  circumstances  comes,  or  does  not  come, 
within  the  operation  of  international  law  at  all.  In  other 
words,  whether  the  States  between  which  a  controversy 
has  arisen  are,  or  are  not,  members  of  'the  family  of 
nations  *.'  If  not,  the  principles  to  be  applied  to  the  facts 
are  derivable  not  from  international  law,  but  from  views 
of  national  interest  tempered  by  general  morality.  Much 
confused  reasoning  has  resulted  from  forgetfulness  of  the 
limited  area  within  which  it  is  possible  or  desirable  to 
apply  the  rules  of  International  law,  as  such. 


Interpre- 
tation. 


III.  What  has  been  said  upon  the  subject  of  *  Inter- 
pretation '  with  reference  to  municipal  law,  applies  mutatis 
mutandis  to  International  law  also. 

The  axioms  of  the  science  and  the  doctrines  of  received 
text- writers  will  be  susceptible  in  general  only  of  *  logical 
interpretation,'  but  something  analogous  to  'authentic 
interpretation '  would  be  quite  possible  in  the  case  of  such 
quasi-legislative  expressions  of  international  opinion,  as, 
for  instance,  the  Declaration  of  Paris,  the  Geneva  Con- 
vention, or  the  three  Conventions  of  the  Peace  Conference 
at  the  Hague. 


1  Supra,  p.  384. 


INDEX. 


Abandonment,  198,  213. 

Abatement,  314. 

Abduction,  322,  374. 

Abettors,  370. 

Abnormal  law,  142,  328,  354,  357. 

—  persons,  134,  138,  328,  329,  337, 
349,  354,  357,  383,  384. 

—  rights,  132,  137,  160,  329,  357. 
Abrogation  of  laws,  by  desuetude, 

56,  60. 
Absolute  duties,  125. 
Abuse  of  process,  182. 
Acceptance,  260,  261 ,  262,  263. 

—  in  alienation,  209,  248  n. 
Accession,  208,  387. 
Accessory,  101,  200,  208,  279,  299, 

370. 

—  contract,  278,  279.  299. 
Accident,  102,  106,  247,  289. 
Accidentalia  Negotii,  118. 
Accord  and    Satisfaction,  309  n, 

324. 
Account  stated,  299,  302. 
Accursius,  261  n. 
Acquisition,  derivative,  152,  209, 

387. 

—  original,  207,  387. 


Acquisition,     per    universitatem, 

154. 
Acquisitive  prescription,  208,  387. 
Act,  87,  88,  89,  101,  102,  145,  151, 

212,  247,  248. 

—  criminal,  369,  371. 

—  elements  of  an,  102. 

—  Juristic,    112,    114,    115,    116, 
117. 

—  lawful  and  unlawful.  111. 

—  of  God,  289,  290. 

—  of  law  and  of  party,  153,  303. 

—  one-sided,  two-sided,  118,  248, 
249,  259. 

—  symbolic,  116. 

—  same  may  infringe  public  and 
private  right,  123. 

Actiengesellschaft,  335. 

Actio  personalis,  167  n,  301,  324. 

Action,  316  n,  349. 

—  cause  of,  316  n. 

—  right  of,  316. 

Actions,  limitation  of,  208,  387. 

—  classification  of,  349. 
Adiimctio,  209. 

Adjective  law,  86,  142,  160,  347, 
354,  357,  375,  377,  383. 

—  criminal  law,  367,  368, 369. 374. 

—  international  law,  382,  391. 


422 


INDEX. 


Adjective  private  law,   160,  347, 
348. 

—  public  law,  357. 
Adjudication,  as  a  source  of  law, 

62. 
Administrative  law,  139,  358,  363, 
367  n. 

—  classification  of,  364. 

—  jurisdiction,  366. 
Administrator,  154,  156,  237. 
Admiralty  practice,  148,  161,  318. 
Adoption,  172. 

Adultery,  172,  240,  319,  322,  374, 

376  n. 
Advantages,  open  to  community 

generally,  163,  179. 
Advocates,  291,  345,  352 
Aemulatio  vicini,  201  n. 
Aeusserungstheorie,  261. 
Age,  341,369. 
Agency,  111,  112,  113,  257,  266, 

291,331,377,390. 

—  in  Contract,  273. 

—  general,  267. 

—  implied,  266. 

—  international,  390. 

—  pretended,  231,  267. 

—  special,  267. 

—  the  contract  of,  265,  292,  299. 
.  Agent,  of  necessity,  266. 

Agents,  classes  of,  267,  293. 
Agobard,  Bp.,  401. 
Agreement,  249, 252, 252-269, 285. 
Aguesseau,  D',  42,  128  n,  380  n. 
Ahrens,  76, 199  n,  203  n,  250, 362  n, 

363  n. 
Air,  rights  over  the,  183,  387  n. 
Alciatus,  198. 

Aleatory  contract,  280,  296. 
Alienation,  153,  202,  209,  248  n, 

280. 

—  contract  for,  280. 

—  voluntary,  280. 
Aliens,  346,  388. 
Aliment,  323. 
Allegiance,  398,  403. 
AUuvio,  208. 
Alverstone,  Lord,  382  n. 
Alveus  Derelictus,  208. 
Ambiguity,  255. 
Amercement,  352  n. 
Angaria,  394. 


Anger,  113  n. 
Animals,  207. 

—  cruelty  to,  126,  344,  372. 

—  responsibility  for,  150  n,  166. 
Animus,  186,  188. 

—  domini,  190,  191. 

—  possessoris,  190,  191  n. 
Annuities,  297. 
Anonjrme,  Societe,  295,  335. 
Anson,  Sir  W.,  136  n,  231  n,  254  n, 

272  n,  296  n,  301  n,  311  n. 
Antecedent  rights,  141,  160,  316, 

318,  385,  389. 
Antichresis,  224. 
Anticipation,  breach  by,  311. 
Appeal,  352,  376. 
Application,  the,  of  law,  397,  406, 

409-413,  419. 

—  of  foreign  law,  411. 
Appointment,  power  of,  202  n. 
Aquilius,  310. 

Aquinas,  St.  Thomas,  20,  33. 
Arbitration,  325,  391. 
Aristocracy,  49. 
Aristotle,  24  n,  26  n,  30  n,  31,  35 

45,  68  n,   124,  279,   314,  359, 

360. 
Armed  forces,  364. 
Arrhae,  286. 
Artificial  persons,  90,  93,  103,  153, 

328,  357,  377. 

—  characteristics     of,    330,    337, 
354. 

—  classification  of,  332. 

—  disabilities  of,  337,  354. 

—  proofs,  352  n. 

Assault,    165,    315,    322,    342  n, 

373. 
Asser.  T.  M.  C,  407. 
Assignment,  211,  251,  272  n,  303. 
Attainder,  345. 
Attempt,  criminal,  370. 
Aucoc,  L.,  367  n. 
Auction,  260. 
Auctioneers,  294. 
Audience,  351. 
Auslobimg,  259  n. 
Ausonius,  361  n. 
Austin,  J.,  10,  22  n,  48,  51,  58,  97, 

105,  107  n,  124,  125,  135,  138, 

152  n,  200,  357. 
Autrefois  acquit.  418. 


INDEX. 


423 


Avaries,  298. 
Avulsio,  208. 
Award,  325. 
Azo,  274  n. 


Backofenzwane,  205. 

Bacon,  Lord,  64  n,  76,  146,  355, 

356. 
Bailment,  196,  232,  270,  279,  288, 

290. 
Banishment,  92,  370. 
Banker,  283. 
Bankruptcy,  154,  212,  242,  295, 

308,  325,  335. 
Bannrechte,  205,  242. 
Bar,  L.'von,  49  n,  407,  418. 
Bargain  and  Sale,  248  n. 
Baring-Gould,  285  n. 
Baron,  J.,  97  n,  99  n. 
Barristers,  291,  345. 
Barter,  281. 
Bartolus,  405. 
Battery,  164,  322. 
Beccaria,  C.  B.,  369. 
Belligerency,  383,  391,  392,  393, 

394,  395,  396. 
Beneficium  ordinis,  300. 
Bentham,  J.,  5,   14,  77,    125  n, 

132,  151,  153,  168,  184,  213  n, 

244,  246,  278,  283,  369,  380  n, 

381  n. 
Betrothal,  285. 
Bets.  296. 

Betting  agent,  279  n. 
Bigamy,  373,  414. 
Bilateral  contract,  278. 
Bill  of  exchange,  272,  305,  311. 

—  of  lading,  305. 

—  of  Sale,  227. 
Birth,  92. 

Blackburn,  Lord,  256. 
Blackstone,    Sir    W.,    22    n,    36, 

65,  80,  92,  105,  132,  135, 
195,  320,  340  n,  357,  379  n, 
381  n. 

Blasphemy,  374  n. 

Blindness,  157  n. 

Blockade,  383,  395. 

Blondeau,  M.,  132. 

Bluntschli,  J.  C,  361  n. 


Bocking,  Ed.,  112  ». 
Bona,  205,  206. 

—  activa,  passiva,  154,  205. 
Bonitarian  ownership,  213. 
Bonorum  imiversitates,  94,  205. 
Booty,  207,  393. 

Bottomry,  226,  298. 
Bracton,  57,  194,  194  n. 
Breach  of  contract,  311,  319,  323, 
374. 

—  by  anticipation,  311. 
Breach    of    promise    to   marry, 

286. 

—  trust,  319,  323. 
Brinkmann,  R.,  406. 
Brissonius,  B.,  115. 
Britton,  319  n. 
Brocher,  C,  408. 
Brokers,  267,  293. 
Bryce,  J.,  49  n,  362  n. 
Bull-fight,  373  n. 
Bundesstaat,  48. 
Bylaws,  73. 


C. 

Calumniae  iudicium,  182. 

Campbell's  Act,  167  n. 

Canon,  213. 

Canon   law,  61,    118,    140,    171, 

285  n. 
Capitis  diminutio,  308. 
Capitulations,  388  n,  393,  415. 
Caput,  90. 

—  lupinum,  92. 
Caretaking,  287,  288. 
Carolina,  the  C.  C,  368,  375  n. 
Carriage,  287,  289. 

Carrier,  246,  289. 
Causa,  269,  274. 
Cause,  145. 

—  of  action,  316  n. 

Cause  and  effect  in  Contract,  250, 

278. 
Cause,  in  French  law,  275. 
Cautio,  270. 

Cautio  iudicatiun  solvi*  183  n. 
Caution,  299. 
Caveat  emptor,  282. 
Celibacy,  340,  343. 
Celsus,  20. 


424 


INDEX. 


Cessio  actionum,  304. 

Cession,  387. 

Champerty,  393. 

Chance,  106. 

Chancellor,  the  Lord,  68,  69,  70, 

71,  72,  241. 
Chancery,  Court  of,  174,  241,  314. 
Change  in  the  law,  400. 
Charles  V,  Emperor,  368. 
Charondas,  251. 
Charter  party,  290. 
Chassat,  M.  de,  405. 
Cheque,  283. 
Chirographa,  272. 
Chose  in  action,  131  n,  304. 
Christendom,  381. 
Christianity,     offences      against, 

374  n. 
Chrysippus,  20,  32. 
Church,  law  of  the,  361  n. 
Church  and  State.  361. 
Cicero,  2,  6  n,  16  n,  20,  32,  56. 
Cimbali,  Ed.,  410  n. 
Citation,  350,  375,  392. 
Citizens,  362. 

CivU  death,  92,  212,  340,  345. 
Civil  obligation,  236. 
Civitas  maxima,  381. 
Claims,  Court  of,  127  n. 
Clam,  190. 

Clark,  Professor,  64  n,  369  n. 
Classification  of  abnormal  natural 

persons,  339. 
Classification  of  acts,  102. 
Classification  of  adjective  private 

law,  348. 
Classification     of     administrative 

law,  364. 
Classification  of  artificial  persons, 

332. 
Classification  of  Constitutional  law, 

359. 
Classification   of  Contracts,    278, 

279. 
Classification  of  Corporations,  332. 
Classification  of  Criminal  law,  371 , 

372,  373. 
Classification  of  Fora,  398,  399. 
Classification  of  International  law, 

383,  386,  394. 
Classification  of  Law,   123,   142, 

358. 


Classification  of  offences,  371,  372, 

373. 
Classification  of  Private  law,  160, 

161,  403. 
Classification  of  Public  law,  358, 

359. 
Classification  of  rights,  120. 
Classification  of   territorial   laws, 

403. 
Classification  of  things,  95, 99, 202, 

203. 
Classification  of  treaties,  389. 
Classification  of  wrongs,  320,  321. 
Claves  horrei,  187. 
Cloak-room,  288. 
Clubs,  331. 
Clunet,  E.,  408. 
Cocceius,  406. 
Cockbum,  L.  C.  J.,  225. 
Code,  the  Civil. 

Austrian,  37. 

French,  see  under  French. 

German,  see  under  German. 

draft  for  New  York,  168  n. 

the   draft   for  Switzerland, 

38. 
Codification  of  Criminal  law,  368, 

369  n. 
Cogordan,  G.,  361  n. 
Coinage  offences,  372. 
Coleridge,  L.  C.  J.,  62  n,  374  n. 
Colonies,  364. 
Combines,  180  n. 
Comity,  391,  406,  409,  418. 
Command,  law  as  a,  84. 
Commandite,    Socidt6    en,    295, 

335. 
Commercia  belli,  393. 
Committees,  174. 
Commixtio,  209. 
Commodatimi,  283. 
Common,  rights  of,  216.     " 
Common  law,  the,  57. 
—  employment,  150,  290. 
Company,  295,  330,  333:   see  also 

Artificial  persons.   Partnership, 

Soci^te. 
Comparative  law,  8. 
Comparative  philology,  8. 
Compensatio,  309. 
Compensation,  309,  312,  313,  316, 

317. 


INDEX. 


425 


Competence,  see  Jurisdiction. 
Competition,  unfair,  180  n. 
Complex    masses    of   rights    and 

duties,  212. 
Compositio,  315  n,  368. 
Compromise,  308. 
Compulsion,  103,  369. 
Concentricity  of  laws,  400,  418. 
Condition,  119,  301. 
Conditional  Contracts,  279,  283. 
Condominiiun,  313. 
Confession  smd  avoidance,  350. 
Conflict  of  laws,   405,   408,  411, 

418. 
Confusio,  209,  308. 
Conjugal  rights,  239,  240. 
Conquest,  387. 
Consciousness,  103. 
Consensual    contract,    252,    279, 

310. 
Consideration,  272  n,  275, 277, 287, 

311. 

—  good,  287. 

—  imported,  272  n,  311. 

—  spiritual,  287. 

—  valuable,  280. 
Consignation,  308. 
Consolidation,  221. 
Constitution,  defined,  360. 
Constitutional  law,  139,  359,  360, 

364. 

—  classification  of,  360. 
Constitutions,  rigid  and  flexible, 

362  71. 
Constitutum,  302. 
Contraband,  395. 
Contract,  117,  118,  209,  239,  247, 

248,  249. 

—  agency  in,  266,  390. 

—  agreement  in,  252. 

—  as  a  risk,  252. 

—  assignment  of,  251. 

—  by  correspondence,  261. 

—  consensual,  252,  253,  310. 

—  criminal  breach  of,  374. 

—  definitions  of,  249,  250. 

—  effect  of,  250,  278. 

—  elements  of,  252,  258,  389. 

—  enforcement  of,  251,  256. 

—  expression  of,  250,  253,  265. 

—  flaws  in,  263. 

—  form  and  cause  of,  269,  274. 


Contract,  formal  and  informal,  269. 

—  implied,  265.  278. 

—  in  the  widest  sense,118, 209, 248. 

—  international,  389. 

—  modes  of  strengthening,  278. 

—  objective  theory  of,  257. 

—  obligatory,  249,  252,  285. 

—  original,  the,  46. 

—  parol,  271. 

—  parties  in,  259,  269,  278. 

—  possibility  and  legality  of,  267. 

—  of  record,  251  n. 

—  rescission  of,  282,  308. 

—  simple,  271. 

—  specialty  and  parol,  271,  276, 
311. 

—  tort  founded  on,  247. 

—  two  senses  of  the  term,  248. 

—  void  and  voidable,  262, 263, 272. 

—  written,  272,  276,  294. 
Contracts,  accessory,  279,  280, 299. 

—  of  agency,  266,  292,  300. 

—  aleatory,  279,  280,  296. 

—  alienatory,  280. 

—  bilateral,  278. 

—  classification  of,  278,  279. 

—  conditional,  279,  283. 

—  consensual,  279,  310. 

—  formal,  269,  278,  281,  284. 

—  formless,  269,  278. 

—  gratuitous,  279. 

—  joint,  259,  278. 

—  for  marriage,  280,  285. 

—  of  marriage,  239,  248  n. 

—  of  minors,  341. 

—  onerous,  279. 

—  principal,  279,  280. 

—  real,  279. 

—  of  sale,  232,  248  n,  281,  289, 
301  n. 

—  for  service,  279,  280,  287,  290. 

—  for  negative  service,  280,  296. 

—  several,  278. 

—  synallagmatic,  278. 

—  unilateral,  278. 
Contractual  right,  175,  247,  278, 

311. 
Contribution,  300.   Cf.  Regress. 
Contributory  negligence,  148. 
Convalescence,  119. 
Conversion,  198,  322. 
Conveyance,  209, 


426 


INDEX. 


Conveyancers,  practice  of,  67. 
Conviction,  212. 
Copyright,  204,  211,  322. 
Co-respondent,  172,  319. 
Corporations,  94,  220,  331,  332, 
333,  335,  366. 

—  aggregate,  329,  339. 

—  classification  of,  332. 

—  disabilities  of,  335,  336,  337. 

—  foreign,  336. 

—  possession  by,  336  n. 

—  sole,  339. 

—  torts  of,  336  n. 

—  trading,  333. 
Corporeal  thing,  97,  131,  206. 
Corpus,  186. 

Correal  obligation,  259  n. 

Correi,  259. 

Correspondence,      contract      by, 

261. 
Cosmopolitan  justice,  theory  of, 

416. 
Costs,  182,  352,  378. 
Cottenham,  Lord,  70,  71. 
Coulanges,  F.  de,  16  to. 
Council  of  Trent,  286. 
Court,  choice  of,  349. 
Court  of  claims,  127  n. 
Courts  martial,  366. 
Covenant  nmning  with  the  land, 

306. 
Coverture,  340,  342. 
Creditor,  259. 
Crime,  212,  319,  367. 
Criminal  Act,  369. 
Criminal  Acts,    classification    of, 

371. 
Crim.  con.,  action  of,  319  n. 
Criminal  jurisdiction,  412. 
Crimmal  law,  139,  319,  358,  367, 

412. 

—  adjective,  375. 

—  conflict  of,  418. 

—  general,  369. 

—  sp)ecial,  371. 

—  procedure,  358,  375. 
Crompton,  Mr.  Justice,  176. 
Cruelty,  see  Animals. 
Culpa.  107. 

—  compensation,  149  n. 

—  degrees  of,  109,  110  n. 

—  in  abstracto,  108. 


Culpa,  in  concrete,  108. 

—  in  contrahendo,  263. 
Cumberland,  R.,  33. 
Ciu-ator,  174. 

—  ventris,  92  n. 
Curtesy,  219. 

Custom,  as  a  source  of  law,  54. 

—  how  transformed  into  law,  55, 
57. 

—  theories  as  to,  60. 

—  of  merchants,  38,  59  n,  311. 

—  of  the  realm,  57,  247. 
Customs,  215. 
Cutting  case,  the,  416  n. 


D. 

Damage,  164,  178,  319. 
Damages,    312.    317,    319,    320, 
352. 

—  general,  323. 

—  special,  324. 

—  measure  of,  323. 
Damnum  infectum,  314. 
Dangerous  things,  166,  232. 
Datio  in  solutum,  309. 

Dead,  rights  of  the,  92,  155,  167, 
307,  373  n. 

—  liabilities  of  the,  307. 
Deafness,  344. 

Death,  92,  164,  261. 

—  effect  of,  on  obligations,  261, 
303,  307,  324. 

—  effect  of,  on  ownership,  212. 

—  presumption  of,  351  n. 
Death,  civil,  92,  212,  340,  345. 
Debitor,  259. 

Deceit,  227,  228,  229,  230,  231, 

263,  321,  322. 
Declaration  of  war,  392. 
Deed,  271,  311. 
Defamation,  177,  322,  373. 
Default,  354. 
Deity,  the,  61 ,  278. 
Del  credere  agent,  293. 
Delict,  318,  319,  367. 
Delivery,  187,  209,  279. 
Democracy,  49. 
Democritus,  31. 
Demosthenes,  19,  46. 
Denier  a  Dieu,  271, 


INDEX. 


427 


Deodand,  150  n. 
Deposit,  288. 
Depositation,  242  n. 
Derivative  acquisition,   153,  209, 
387. 

—  origin  of  States,  385. 

—  rights,  162. 
Derivative  possession,  192. 
Demburg,  H.,  43,  63  n. 
Destruction  of  a  thing,  307. 
Determinate  authority,  27,  39. 

—  incidence,  rights  of,  141. 
Detinue,  203.  322. 

Dicey,  Prof.,  49  n,  67  n,  138, 173  n, 
362  n,  367  n,  406,  411  n. 

Dies  cedit,  158. 

Diligentia,  108. 

Director  of  Public  Prosecutions, 
376  n. 

Directors'  Liability  Act,  1890, 
231  n. 

Dispositive  fact,  151,  212. 

—  voluntary  and  involuntary, 
212. 

Dissolution  of  artificial  person,  94, 

330. 
Disti-ess,  225,  313,  318. 
Disttu-bance,  322. 
Divestitive  fact,  152,  153,  212. 
Divisibility,  100. 

Divorce,  171,  240,  287,  354,  399. 
Dolus  malus,  229  n. 
Domestic  rights,  238. 

—  service,  175,  287,  290. 
Domicil.  398,  399,  402,  403. 
Dominant  tenement,  215. 
Dominical  rights,  174. 
Dominium,  199,  387. 
Dominium  eminens,  201,  376. 
Donatio  mortis  causa,  158,  209. 
Donation,  209,  280,  346. 

Dos,  280,  343. 

Draco,  56. 

Droit,  14,  80. 

Dnmkenness,  104,  243,  343,  369. 

Duck,  A.,  66. 

Duress,  103,  264,  271,  321,  390. 

Duties  as  basis  of  classification,  83, 

84  n. 
Duties  of  neutrals,  394. 
Duty,  absolute  and  relative,  125. 

—  legal  and  moral,  83. 


K 

Easements,  217,  322. 
Ecclesiastical  law,  361  n. 
Edict,  the  perpetual,  72,  130  n. 
Eldon,  Lord,  71,  72. 
Elements  of  an  act,  102. 

—  a  contract,  254,  258,  389. 

—  a  right,  87,  88. 
Elevator  cases,  the,  201  n. 
Ellenborough,   Lord,   105,  106  n, 

147. 
Embargo,  392. 
Embezzlement,  194  n. 
Emblements,  284. 
Eminent  domain,  376. 
Empfangstheorie,  261. 
Emphyteusis,  214. 
Employers'    Liability    Act,    150, 

291. 
Emulous  use,  201  n. 
Enemy,  346,  354. 
Equity,  37,  38,  68. 

—  of  redemption,  224  n. 
Error,  104,  257. 
Erskine's  Institutes,  170  n. 
Erworbene  Rechte,  162. 
Escheat,  155. 

Esher,  Lord,  M.  R.,  63  n. 
Essentialia  Negotii,  118. 
Estoppel,  272,  326. 
Etat  civil,  364,  372. 
Etat  federatif,  48. 
Ethic,  25. 

—  defined,  26. 
Etiquette,  23,  27. 
Eiu-opean  Concert,  385. 
Events,  89,  101,  151. 

—  preventing  performance,  307. 
Evidence,  law  of,  351,  376. 
Exceptio,  350. 

—  doli  mali,  263  n. 
Exchange,  281. 
Execution,  353,  376. 
Executive  ftinctions,  363. 
Executor,    154,    157,    237,    242, 

303. 
Executory  consideration,  277. 
Exercice  abusif  d'un  droit,  181  n. 
Expression  of  agreement,  265. 
Expression  of  Will.  Ill,  114,  115, 

116,  117. 


428 


INDEX. 


Extent  of  a  right,  153. 
Extinction  of  rights,  306,  324. 
Extinctive  prescription,  326. 
Extradition  treaties,  413,  418. 
Extraterritorial  effect  of  laws,  406, 

409. 
Extraterritorial     recognition     of 

rights,  411. 
Extraterritoriality,  388. 


F. 

Factors,  267,  293. 

Factors'  Acts,  293  n. 

Factory  Acts,  77. 

Facts.  89,  101,  151,  306  n,  340. 

—  dispositive,    151,212. 

—  divestitive,  152,  212. 

—  investitive,  151,  318. 

—  involuntary,  153,  212. 

—  translative,  153. 

—  voluntary,  153,  212. 
FamiUenrecht,  130. 

Family  of  Nations,  the,  384, 
420. 

Family  rights,  168,  238,  303,  322, 
374. 

Fashion,  21,  22,  27,  28. 

Faucher,  V.,  408. 

Felony,  327,  370,  371. 

Ferae  naturae,  animals,  166,  187, 
207. 

Festuca,  271. 

Feudal  duties,  323,  387. 

Feuerbach,  A.  R.  von,  369. 

Fiction,  legal,  63,  203,  205. 

Fideicommissa,  241. 

Fideicommissarius,  242. 

Fideiussio,  299. 

Fides  facta,  271. 

Fiducia,  223. 

Fiduciarius,  242. 

Fiduciary  rights,  238,  241-243, 
323. 

Filius  familias,  342. 

Fiore,  P.,  408. 

Firm,  a,  334. 

Fixtures.  208,  284. 

FcbUx,  J.  J.  G.  ,  unfortunate  termin- 
ology of,  407,  419. 

Foolhardiness,  107  n. 


Foote,  J.  A.,  408. 

Foote's  case,  374  n. 

Fora,  chissification  of,  398,  399. 

Forbearance,  87,  102. 

Foreign  corporation,  336. 

Foreign  enlistment,  371,  395. 

Foreign  judgments.  38,  399,  411, 

416. 
Foreign  Jurisdiction  Act,  389  n. 
Forensic  Medicine,  5  n. 
Forfeiture  of   a  right,  149,  221, 

337. 
Form  of  Expression  of  Will,  117, 

336. 

—  government,  47,  359. 
Formal  contract,  269,  278. 
Formalities,  211,  269,  270,  281. 

—  utility  of,  270. 

—  of  a  contract,  255,  337. 
Formless  contract,  269,  278. 
Forum,  tlie  question  of,  397,  412, 

419. 

—  in  private  law,  398. 

—  in  public  law,  412. 

—  actus,  399. 

—  civitatis  laesae,  413,  415. 

—  contractus,  399. 

—  delicti,  399,  413,  415. 

—  deprehensionis,  413,  416. 

—  domicilii,  399,  413. 

—  fortuitum,  399,  413,  416. 

—  ligeantiae,  399,  413,  415. 

—  litis  motae,  399. 

Foster.  Mr.  Roger,  168  n,  342  n. 
Franchise.  205,  211. 
Fraud. 229, 230, 231 , 232, 263, 267, 
271,  316,  321,  322,  374. 

—  right  to  immunity  from,  163, 
229,  322. 

Frauds,  statute  of,  266,  273,  299, 
310  n. 

Freight,  290. 

French  law,  155,  201  n,  216,  220, 
240,  268,  271,  273  n,  280,  282, 
287,  293,  294,  295,  296,  297, 
342.  345,  370,  371,  399,  414, 
415. 

Fructus  industriales,  285. 

—  naturales,  285. 
Fructuum  perceptio,  207. 
Fruits,  220. 

Fry.  L.  J.,  246  n,  316  n,  317  n. 


INDEX. 


429 


Fungible    things,   101,   219,   220, 

283. 
Further  assurance,  299,  302. 
Furtum,  322. 


G. 

Gaius,  35,  130,  130  n,  132  n,  220, 
289  n,  303,  310,  340,  351  n. 

Gaming,  297. 

Gans,  Ed.,  198. 

Gavelkind,  400. 

Gellius,  A.,  22  n,  41  n,  56. 

General  average,  298. 

Generally  available  rights,  163, 179, 
322. 

GentiU,  A.,  35,  38,  380. 

German  Civil  Code,  37  n,  92  n,  97  n, 
103  n,  110  n,  162  n,  181  n,  193  n, 
196  n,  200  n,  201  n,  234  n,  255  n, 
260  n,  261  n,  263  n,  268,  268  n, 
269  n,  287  n,  296  n,  304  n,  305  n, 
326  w,  332  n,  352  n,  404  n,  417  n, 
418  n. 

Geschaftsobligationen,  238  n. 

Gift,  212,  280. 

Gliick,  C.  F.,  3  n,  115  n,  140  n, 
292  n. 

God,  act  of,  289. 

—  law  of,  23,  39. 

Goods,  205,  206. 

Goodwill,  181  n,  203  n. 

Grand  jvay,  57. 

Gratuitous  contract,  279. 

Gregory,  C.  N.,  263  n. 

Grote,  G.,  16  n,  313,  315  n. 

Grotius,  Hugo,  33,  36,  38,  45,  47, 
205  n,  257  n,  376  n,  389,  394  n. 

Ground-rent,  221. 

Grueber,  E.,  9  n,  277  n. 

Guarantee,  278,  282, 283, 284, 291, 
293,  300. 

Guardianship,  173,  240,  341. 


Habit,  55. 

Habit  and  Repute,  170. 
Habitatio,  219. 
Hadrian,  72. 


Hague  Conventions,  the,  391    n, 

420. 
—  Tribunal,  the,  391  n. 
Halbritter,  405. 
Hale,  L.  C.  J.,  9  »,  64  n,  67,  74  n, 

112  n,  132,  135. 
HaU,  W.  E.,  92  n. 
Halm,  198. 
Ham,  405. 
Hamaker,  407. 
Handsel,  271,  285. 
Hardwicke,  Lord,  70,  157  n,  187, 

242. 
Harrison,  F.,  84,  410  n. 
Basse,  J.  C,  110  n. 
Hatton,  Sir  Ch.,  70. 
Haus,  J.  J.,  408. 
Heedlessness,  107  n. 
Hegel,  G.  W.  F.,  21,  61,  102  n. 
Heineccius,  Jo.  G.,  152. 
Henry,  J.,  405. 
Hereditas,  339. 

Hermogenianus,  126  n,  130  n. 
Herodotus,  29  n,  31. 
Hertius,  J.  N.,  405. 
High  Treason,  372. 
Highways,  use  of.  181. 
Hindoo  law,  62,  402. 
Hiring,  284. 

Historical  School,  the.  60. 
Hobbes,  Th.,  22  n,  23  n,  33,  41  n, 

42,  47,  49,  75. 
Holland,  T.  E.,  309  n,  366  n,  383  n, 

393  n,  395  n. 
Holmes,  Mr.  Justice,  9  n,  92  n, 

106  n,  107  n,  109,  110  n,  150  n, 

158  n,  188  n,  194  n,  195  n,  196  n, 

252,  2.54  n,  258  n,  271  n,  272  n, 

276  n,  321  n,  323  n,  369  n. 
Holt,  L.  C.  J.,  68  n,  110  n,  144  n, 

179. 
Homer,  16  n. 
Homestead  laws,  353. 
Honorarixmi,  291  n,  293. 
Honour,  laws  of,  23,  27. 
Hooker,  Rich.,  20,  23  n,  36,  47  n. 
Hosack,  J.,  406. 
Hostility,  346. 
House    of    Lords,    decisions    of, 

66. 
Hozumi,  N.,  40  n. 
Huber,  U.,  405,  407,  411  n. 


430 


INDEX. 


Hugo,  G.,  141. 

Hunter,  W.  A.,  136  n,  270. 

Husband  and  Wife,  103, 149, 168, 

171, 239, 266, 285, 342, 346, 353. 

354. 
Hypothec,  225. 
Hypothekenbiicher,  226,  227. 


Identification,  theory  of,  147. 
Identity.  385. 
Idiocy,  369. 
Ignorance,  104. 

—  of  fact,  104. 

—  of  law,  105. 

Ihering,  R.  von,  6  n,  28  n,  43, 
46,  82,  102  n,  113  n,  116  n, 
126  n,  191,  193  n,  197  n,  279  n, 
369  n. 

lUegaUty,  268,  359. 

Illegitimacy,  137,  345. 

Immoveables,  100,  208. 

Imperium,  387. 

Implied  Agency,  266. 

—  Contract,  265,  278. 

—  Trust,  242. 
Impossibility,  268. 

—  subsequent,  307. 
Imprisonment,  165,  322,  370,  373, 

375. 
Impuberes,  104. 
Imputation,  111,  178. 
Inaedificatio,  208. 
Incerta  persona,  152,  259. 
Incidence,  rights  of  determinate, 

141. 
Indemnity,  298,  299,  300. 
Indeterminate  authority,  27. 

—  incidence,  rights  of,  141. 
Indictment,  126,  376  n. 
Indivisibility,  100. 
Industrial  fruits,  220. 
Infamy,  292. 

Infant,  104,  302,  328,  341. 

—  unborn,  92. 

Infants'  Relief  Act,  302,  341  n. 

Information,  379. 

Infringement,  145,  176,  205,  318, 

322,  367. 
Ingratitude,  280,  323. 


Injunctions,  70,  314. 

Innkeepers,  246,  288. 

Inquisitorial  method,  375  n. 

Inscriptions,  227. 

Inspection,  government,  365  n. 

Insult,  177. 

Insurance,  288,  289,  290,  298,  299, 

305. 
Intangible    property,     203,    205, 

211. 
Intention,  104,  177,  189,  190,  321, 

369. 
Intercessio,  292  n,  299. 
Interdicts,  190,  197. 
Interest,  283,  298. 
International  law,  38,   127,   139, 

142.  380,   381,  382,   396,  410, 

419  n. 

—  application  of,  419. 

—  penal  law,  407,  418,  419. 

—  persons,  382,  383,  384. 

—  private  law,  407,  408,  409,  410, 
411. 

Interpretation,  397,  412,  420. 

—  Act,  the,  329  n. 

—  authentic,  410,  420. 

—  doctrinal,  412. 

—  extensive,  412. 

—  grammatical,  412. 

—  legal,  412. 

—  logical,  412,  420. 

—  restrictive,  412. 

—  usual,  412. 

Intertemporales  Privatrecht,  401  n. 
Intestate  succession,  155. 
Invention,  204. 

Investitive  fact,  151,  318. 
Indicia  extraordinaria,  368. 
ludiciimi  rusticum,  148. 
lura  in  re,  183,  198. 

—  aliena,  210,  222,  322,  387. 
lurisconsulti,  2  n. 
Iiu-isprudentia,  meaning  of  term, 

2,3. 
lus,  14,  80. 

—  accrescendi,  295. 

—  angariae,  394. 

—  inter  gentes,  380. 

—  gentium,  9  n,  34.  269. 

—  naturale,  6,  32-38. 

—  in  personam,  236. 

—  possessionis,  185,  198. 


INDEX. 


431 


lus,  possidendi,  185,  200. 

—  privatum,  356. 

—  publicum,  356. 

—  quod  ad  pers.  pertinet,  132. 

—  quod  ad  res  pertinet,  131. 

—  ad  rem,  140. 

—  in  rem,   139,    140,    141,   234, 
237. 

—  in  re,  140. 

—  vindicandi,  200. 
lusta  causa,  151,  209. 


Japan,  385,  389  n. 
Japanese  law,  40  n,  214  n. 
Javolenus,  253. 

Jenks,  E.,  112  n,  162  n,  269  n. 
Jessel,  M.  R.,  71,  268. 
Jest,  115. 

John  of  Salisbury,  see  Salisbury. 
Joint  and  several  contracts,  259, 
278,  300. 

—  owners,  201,  208. 
Joint-stock  company,  334,  335. 
Joint  tenancy,  295. 

Jolly,  340  n. 

Judge,  function  of,  314. 

—  liability  of,  245,  360,  361. 
Judgment,  352,  376. 

—  as  merger,  325. 
Judicature  Act,  1873,  the,  72. 
Judicial  decisions,  authority  of,  65, 

66. 
Judicial  notice,  351. 

—  functions,  360,  361, 
Julianus,  Salvius,  72. 
Jurisdiction,  349,  375. 

—  administrative,  366. 

—  criminal,  375. 

—  international,  386,  387. 

—  personae,  398  n. 

—  ratione  materiae,  398  n. 

—  cosmopolitan  theory  of,  416. 

—  personal  theory  of,  413. 

—  quasi-territorial  theory  of,  415. 

—  self-preservation  theory  of,  415. 

—  territorial  theory  of,  413. 
Jurisdiction  Act,  Foreign,  389  n. 
Jurisprudence,  2. 

—  defined,  12. 


Jurisprudence,   as   equivalent   to 
law,  4. 

—  a  science,  5,  13. 

—  a  formal  science,  6,  7,  13. 

—  abstracted  from  positive  law,  9. 

—  progre.ssive,  9. 

—  not  divisible  into  general  and 
particular,  10,  13. 

—  nor  into  historical  and  philo- 
sophical, 11,  13. 

—  divisible  into  civil  and  criminal, 
12. 

—  its  relation  to  comparative  law, 
7,8. 

—  analytical,  6  n. 

—  architectural,  4  n. 

—  censorial,  5. 

—  dental,  5  n. 

—  expository,  5. 

—  formal,  6. 

—  general,  10. 

—  historical,  11. 

—  local,  5. 

—  medical,  5  n. 

—  particular,  10. 

—  universal,  10. 

—  use  of  the  term  law  in  21. 
Juristic  Act,  112-119. 

—  one-sided,  118,  248. 

—  two-sided,  118,  248  249,  259. 

—  person,  93,  103. 
Jury,  grand,  57. 
Justification,  149,  164,  176,  179, 

370. 
Justinian,  56,  72,  124,  132,  182, 
352  n. 


Kant, 21,  26,  29  n,  75,  81,  111  n, 

171,  184,  209  n,  235,  239  n. 
Kent,  Chancellor,  407. 
Kindersley,  V.  C,  250. 
King,  the,  344,  360  n. 
King's  Proctor,  354  n. 
Kirchmaim,  81. 
Kluber,  J.  L.,  383,  386  n. 
Krause,  21,  76. 
Kultiu--Staat,  77  n. 


Labeo,  229  n. 

Laesio  enormis,  264  n,  281. 


432 


INDEX. 


Landrecht  bricht  gemeines  Recht, 

400. 
Land  Transfer  Act,  156  n,  158  n. 
Langdale.  Lord,  338. 
Langdell,  Prof.,  254  n. 
Larceny,  194  n. 
Latent  defects,  282. 
Laurent,  F.,  407. 
Laveleye,  E.  de,  335  n. 
Law,  14. 

—  in  the  physical  sciences,  18, 19. 

—  in  the  practical  sciences,  18, 19. 

—  as  a  rule  of  action,  20,  21,  23. 

—  in  Jurisprudence,  21,  41. 

—  application  of,  397,  406,  409, 
411,  412,  419. 

—  classification  of,  122,  142,  358. 

—  interpretation  of,  412,  420. 

—  object  of,  75,  77,  314. 

—  object  of,  means  of  attaining, 
77,  347. 

—  origin  of,  55,  56. 

—  sources  of,  53,  54. 

—  divisions  of,  142,  356,  357,  358. 

—  abnormal,  132,  138,  142,  328, 
354,  357. 

—  adjective,   86,    142,    160,   347, 
354,  357,  377,  383. 

—  Administrative,  139,  358,  363, 
366,  367  n. 

classification  of,  364. 

—  common,  the,  57. 

—  comparative,  8. 

—  Constitutional,  139,  356,  358, 
359,  364. 

—  Criminal,  139,  319,  358,   367, 
412. 

—  of  Evidence,  351,  376. 

—  extraterritorial  effect  of,  406, 
409. 

—  formal,  347  n. 

—  general,  132. 

—  of  God,  23,  39,  40. 

—  International,  38, 127,380, 382. 

—  martial,  366. 

—  private,  407-411,  418. 

—  Merchant,  38,  59  n,  311. 

—  military,  366. 

—  Moral,  28. 

—  Municipal,  122, 128,  381,  410  n. 

—  of  Nations,  380,  409. 

—  of  Nature,  30,  31,  32,  33. 


Law,  normal,132, 138, 142,328,384. 

—  particular,  132. 

—  personal,  401. 

—  of  persons,  129,  131,  328,  354, 
357. 

—  positive,  41. 

—  private,  122, 138, 142, 161,  328, 
347,  355,  382,  419. 

—  private  international,  407,  408, 
410. 

—  public,  122,  138,  142,  320,  355, 
382,  412,  419. 

—  substantive,  86,  142,  160,  357, 
369,  383,  384. 

—  territorial,  401,  402. 

—  of  things,  129. 

—  written  and  unwritten,  74. 

—  a,  a  proposition,  23,  84. 

—  a,  a  command,  16,  22,  49,  84. 

—  definition  of  a,  40. 
Law,  act  of,  153,  303. 
Law-making  organs,  74. 
Lease,  284. 

Leave  and  licence,  164. 
Legacy,  158,  209,  242. 
Legal  duty,  83. 

—  fiction,  63,  203,  205. 
Legal  right,  78,  82. 

Legal  process,  abuse  of,  182. 
Legality  of  a  contract,  269. 
Legation,  law  of,  390. 
Legislation,  as  source  of  Law,  73. 
Legislative  functions,  364. 
Legitimatio  per  subsequens  matri- 

monium,  345. 
Leibnitz.  G.  W.,  77, 81, 1 12  n,  156  n. 
Leonhard,  R.,  112  n,  117  n,  254, 

258  n. 
Leonina  societas,  294. 
Letters,  property  in,  204  n. 
Letting,  284. 
Lex,  the  question  of,  397, 400,  418, 

419. 
Lex  domicilii,  403. 

—  fori,  402,  403. 

—  ligeantiae,  403. 

—  loci  actus,  403. 

—  loci  contractus,  403. 

—  loci  delicti  commissi,  403. 

—  loci  rei  sitae,  403. 

—  loci  solutionis,  403. 
Lex  Calpumia,  368. 


INDEX. 


433 


LiabiUty.  321  n,  323. 

—  assignment  of,  303. 

—  limited,  295,  335. 
Libel,  178,  319,  322,  373. 

—  blasphemous,  374  n. 

—  on  the  dead,  373  n. 
LiberaUties,  280. 
Libertini,  174,  241. 
Licences,  221. 

Lien,  224,  282,  288. 
Life,  services  for,  291  n. 
Life-interest,  219,  220. 
Life-rent,  219. 
Lights,  ancient.  217. 
Limitation  of  actions,  208,  326, 
344. 

—  statutes    of,     273,    302,    326, 
344. 

Limited  liability,  295,  335. 

Lindley,  L.  J.,  404  n. 

Liquidation,  335. 

Lis  alibi  pendens,  326. 

Litis  contestatio,  325. 

Livelihood,  right  to,  179. 

Livermore,  S.,  406. 

Loan  for  consumption,  283. 

Loan  for  use,  283. 

Local  government,  366. 

Locatio-conductio,    283,    284    n, 

288  n,  291. 
Locke,  John,  23  n,  29,  76. 
Lomonaco,  407. 
Lords,  House    of,  judgments   of, 

66. 
Lotteries,  297. 
Lunacy,  369. 
Lunatics,  104,  133,  134,  174,  243, 

343,  354. 
Lush,  L.  J.,  347  n. 
Lycophron,  314. 


M. 

Macaulay,  Lord,  369. 

Macedonianimi,  S.  C,  342. 

Mahomedan  law,  62,  171  n,  268, 
401,  402. 

Maine,  Sir  H.  S.,  10  n,  16  n,  22  n, 
49  n,  50,  63  n,  70  n,  72,  101  n, 
155,  313,  348  n,  368  n,  406  n. 

Maintenance,  182,  372,  393. 

HOLLAND  Ff 


Maitland,  Prof.,  332  n. 
Majority,  age  of,  341. 
MaUce,  104,  177,  321. 
Malicious  prosecution,  182,  322. 
Malum  per  se,  36. 
Malum  prohibitum,  36. 
Mancipatio,  270. 
Mandatory,  265,  292. 
Mandatum,  292. 
Mansfield,  Lord,  224,  276  n. 
Manslaughter,  414. 
Mansuetae  naturae,  animals,  166. 
Manu,  Institutes  of,  54  n. 
Manumission,  174. 
Marine  insurance,  298,  305. 
Marital    rights,    168,     169,    171, 

239. 
Markby,  Sir  W.,  67  n. 
Market  overt,  281. 
Marriage,  168,  239,  285,  401  n. 

—  clandestine  and  regular,  285. 

—  fraudulent,  232. 

—  temporary,  171. 

—  brokage,  268. 

—  contract,     239,    248    n,    280, 
285. 

—  precontract  of,  286. 

—  settlement,  281,  343. 

—  effect  of,  on  ownership  and  lia- 
bilities, 212,  303,  342,  343. 

Martial  law,  366. 

Master  and  Servant,  150,  163, 174, 

188,  232,  291,  322,  323. 
Measxu-e  of  damages,  324  n. 
M6decine  legale,  5  n. 
Medical  Jurisprudence,  5  n. 
Meiern,  J.  G.  de,  405. 
Menace,  164. 
Mental  suffering,  167. 
Merchants,  custom  of,  see  Custom. 
Merger,  308,  325. 
Meritorious     rights,     238,      243, 

323. 
Method,  143,  160,  238,  279,  279  n, 

280,  322,  358,  383. 
Metus,  103 
Might,  82. 

Mignonette  case,  the,  370  n. 
Military  law,  366. 
Mill,  J.,  104  n. 

—  J.  S..  6n. 
Mmistfere  public,  354  n,  376. 


434 


INDEX. 


Minors,  104,  225,  316,  341. 
Mirabeau,  202. 
Misdemeanor,  370. 
Misrepresentation,  264. 
Mistake,  113,  116,  245,  271. 
Mittermaier,  C.  J.  A.,  369. 
Modestinus,  90,  171,  309. 
Modus  adquirendi,  152. 
Mohl,  R.  von,  419  n. 
Monarchy,  49. 
Money,  281,  283. 
—  had  and  received,  243. 
Monogamy,  171. 
Monopolies,  statute  of,  204. 
Monopoly,  152,  322. 
Montaigne,  29  n. 
Montesquieu,  127  n,  360. 
Moral  duty,  83,  236. 
Moral  law,  27. 

Moral  principles,  28,  29,  380. 
Morality  and  custom,  53,  55. 
Mortgage,    223,    226,     227,    228, 

387. 
Mortmain,  statutes  of,  202,  241, 

336. 
Moulins,  Ordonnance  de,  272. 
Moveables,  100. 
Miihlenzwang,  205. 
Miiller,  Max,  Professor,  6  n,  16  n. 
Mimdschatz,  285. 
Municipal  law,  128,  381,  410  n. 
Murder,  414. 
Mutuum,  288. 


N. 

Name,  Trade,  right  to,  204  n. 
Nationality,  361. 
Natiu-al  justice,  37. 
Natural  Law.  6,  30-38. 

—  deductions    from    theory    of, 
35. 

—  fruits.  200,  207,  220. 

—  obligation,  236,    299,    310  n, 
326. 

—  person.  90,  153,  329,  340. 

—  rights.  162,200,214. 
Naturalia  Negotii.  118. 
Naturalisation,  361,  364. 
Nautae  caupones,  the  edict,  289. 
Nautica  pecimia,  298. 


Nauticum  foenus,  298. 
Necessaries,  239,  267  n,  341. 
Necessity,  Agent  of,  266. 
Negative  services,  280,  296. 
Negligence,  106,  111,  147, 148, 151, 
164,  288-291,  321,  369. 

—  comparative,  148  n. 

—  contributory,  147,  148. 
Negotiable  instruments,  305. 
Negotiorum  gestio,  237,  243. 
Nervous  shock,  see  Mental  suffer- 
ing. 

NeutraUty,  384,  391,  393-396. 
Nomenclattire,  see  Terminology. 
Nomology,  25,  26,  27. 

—  defined,  26. 
tiSfios,  16  n. 
Non-conformity,  345. 
Non-performance,  306,  307,  311. 
Normal  law,  138,  142. 

—  persons,  134,  138,  329,  384 

—  right,  132.  140,  160. 
Nottingham,  Lord,  71. 
Novatio,  304,  310. 

Novi  operis  denimtiatio,  314. 
Noxae  deditio,  150  n. 
Nuda  proprietas,  200,  213. 
Nudum  pactimi,  269,  274. 
Nuisance.  203,  322,  373. 
Nullity,  113,  116,  118. 
NuUimi  tempus,  377  n. 
Nimibers  of  a  State,  43,  44. 
Nys.  E.,  380  n,  387  n,  397  n. 


O. 

Oaths.  278. 

Obiter  dicta.  67. 

Object  of  law.  75,  83,  316. 

—  of   a   right,    79,    88,   95,    122, 
316. 

Objects  of  ownership.  202. 
Oblatio.  308. 

Obligation,    is    it    a    'res'?    96, 
176. 

—  civil,  236. 

—  correal,  259  n. 

—  definitions  of,  235. 

—  natural,     236,     299,     310    n, 
326. 

Obligations,  310,  316  n. 


INDEX. 


435 


Obligationes,  234,  235. 

—  ex  contractu,  235,  247. 

—  ex  delicto,  198,  235. 

—  ex  variis  causarum  figuris,  238. 

—  quasi  ex  contractu,  235,  237, 
238. 

—  quasi  ex  delicto,  235,  319. 
Obligatory    contract,    249,     252, 

285. 
Occupatio,  207,  387. 
Oerstadt,  406. 
Offences,  367. 

—  classification  of,  371. 

—  list  of,  371-374 
Ofifer.  259. 

Offer  to  negotiate,  260  n. 

Office,    effect     of    holding,    245, 

344. 
Official  rights,  238,  245,  372. 
Oldendorp,  J.,  35. 
Omission,  102  n,  370. 
One-man  Companies,  335  n. 
Onerous  contract,  279. 
Operae  servorum,  219. 
Orbit  of  a  right,  144.  318,  367. 
Ordinary  rights,  179. 
Origin  of  artificial  persons,  94. 

—  of  law,  53. 

—  of  states,  385. 

Ownership,    199,   213,   227,   386, 
387. 

—  acquisition  of,  206,  213,  387. 

—  bonitarian  and  Quiritarian,  213. 

—  elements  of,  199. 

—  international,  386. 

—  joint  and  several,  213. 

—  legal  and  equitable,  213. 

—  limits  of,  199. 

—  objects  of,  202,  203,  204. 

—  transfer  of,  204,  208,  210,  212. 


P. 

Pacific  Blockade.  392. 

Pacigerat,  394  n. 

Pacta,  nuda,  269,  274. 

—  vestita,  274. 

Pactimi  de  non  petendo,  310,  324. 

Paley,  W.,  28  n,  29,  257  n,  279  n. 

Paper  to  Bearer,  305. 

Parent  and  chUd.  172,  240,  342. 


Parental  rights,  172,  240,  342. 
Parol  contract,  271,  276. 
Part,  ideal,  100. 

—  payment,  308,  326. 

—  physical,  100. 
Partie  civile,  320. 
Parties  to  an  action,  353. 

—  to  a  contract.  259,  278. 
Partnership,  267,  294,  295,  331, 

333,  334,  335. 

—  classification  of,  295. 
Partnership  Act,  1890,  294. 
Partus  ancillae,  209. 
Party,  act  of,  153,  303. 

—  extraneous  to  an  action,  353. 
Patents,  204,  211,  322. 

Patria  potestas,  340,  342. 

Patronus,  174,  240. 

Palus.  103,  105,  124,  149  n,  235, 

292,  316  n,  330  n,  376  n. 
Paiunee.  271. 
Pawn.  224. 
Payment.  306. 

—  by  third  party,  306. 

—  into  Court,  308. 
Peace.  384,  386. 
Peculimn,  342. 
Peer,  354. 

Penal  Code,  370,  371. 
People,  43. 
Performance,  306. 

—  events  preventing,  307. 

—  release  of,  286,  310. 

—  substitutes  for,  306,  308. 
Peril,  at  one's,  144  n,  166. 
Perjury,  372. 
Permissive  use,  280,  283. 
Person,  87,  88,  89-95,  129,  130, 

328. 

—  abnormal,  134,  328,  329,  340, 
349,  354,  357,  383. 

—  artificial,  90,  93,  103,  329,  332, 
333,  339,  357,  377. 

—  of  incidence,  88,  90. 

—  of  inherence,  88,  90. 

—  international,  383. 

—  juristic,  93,  103. 

—  natural,    90,     91,     329,     339, 
340. 

—  normal,  133,  134, 328, 329,  349, 
383. 

—  offences  against  the,  371,  373. 


Ff  a 


436 


INDEX. 


Person,  political,  122. 

—  public  and  private,  121. 
Persona,  90,  91,  152,  259. 

—  standi  in  iudicio,  354. 
Personae,  res,  actiones.  130  n. 
Personal  law,  401. 

—  and  real  statutes,  140,  405. 

—  servitudes,  218. 

—  theory  of  jurisdiction,  413. 
Personality,    extension    of,    183, 

197. 
Persons,  law  of,  129-140,  328. 
Petition  of  Right.  127,  378. 
Pfeiflfer,  L..  407. 
Phillimore,  Sir  R.,  407. 
Philolofinr,  comparative,  8. 
Physicians,  291,  345. 
Picketing,  175  n. 
Pictura,  209. 
Pignus,  224. 
Pindar,  19. 
Pirates,  389,  416. 
Place,  102,  418. 

—  in  the  application  of  law,  399, 
400,  402,  416,  417,  418. 

Plantatio.  209. 
Plato,  16  n,  47  n,  263  n. 
Plea,  in  confession  and  avoidance, 
350. 

—  dilatory,  350. 

—  peremptory,  350. 
Pleadings,  350,  375. 

Pledge,  214, 222, 223, 299, 300, 313, 

322,  323,  326. 
Pledging,  270. 
Plures  rei,  259. 
PoUcy  of  the  law.  268,  296,  297, 

325. 
Political  person,  122. 
Pollicitatio,  259. 
Pollock,  L.   C.   B.,  64  n,  244  n, 

2.56. 
Pollock,  Sir  F.,  8  n,  54  n,  64  n, 

106  n,  112   n,   147  n,    164  n, 

182  n,   201   n,  215  n,   231   n, 

254  n,   289  n,  295  n,   321    n, 

337  n. 
Polygamy,  171. 
Pomponius,  149,  314,  316  n. 
Positive  law,  9,  41. 

—  relation  of,  to  natural,  9,  34. 

—  nature  of,  185,  192,  193,  194. 


Possession,  commencement  of,  184 
198. 

—  derivative,  191,  192. 

—  elements  of,  185. 

—  representative,  188. 

—  right    to,  163,    172,    183,  184, 
200. 

—  symbolical,  187. 

—  termination  of,  198. 

—  as  a  mode  of  acquiring  owner- 
ship, 207. 

Possibility    of    a    contract.    267, 

268. 
Post,  contracts  by,  261. 

—  property    in  articles  sent  by, 
374  n. 

Poste,  E.,  132. 

Postmaster-General,  245,  374  n. 

Pothier,  227  n,  249,  263  n,  317  n. 

Practice,  347  n. 

Praetor,  the,  68. 

Pranzataro,  259  n. 

Precarium,  191,  224  n. 

Precedents,  64. 

Precontract  of  marriage,  286. 

Predial  servitudes,  215. 

Prerogative  process,  379. 

Prerogatives,  360. 

Prescription,  acquisitive,  208,  387. 

—  extinctive,  208,  326. 

—  in  criminal  law,  370. 
Presumptions,  179,  264,  351. 
Pret  a  la  grosse,  298. 
Price,  281. 

Primary  rights,  142. 

Principal  and  accessory,  101,  208, 

279,  280,  299,  370,  390. 
Principal  and  agent,  111,117,  265, 

267,  292,  293,  323,  390. 
Principal  contract,  278,  279. 
Prins,  M.  A.,  376  n. 
Prisot,  L.  C.  J.,  62. 
Privacy,  right  to,  183  n. 
Private  International  law,  407, 409, 

410,  411,  419. 

conferences  on,  404  n. 

Private  law,  122,  138,  142,  161, 

320,  347,  355,  382,  418,  419. 

—  abnormal,     142,      161,      328, 
354. 

—  adjective,  160,  161,  347. 

—  application  of,  397. 


INDEX. 


437 


Private  law,  normal,  142,  161. 

—  substantive,  160. 
Privileged  statement,  179. 
Privileges,  228. 
Privilegium,  22  n,  152. 

Privy  Council,  decisions  of,  66. 

Prize,  207,  393. 

Procedure.  86,  347,  358,  369,  375, 

378. 
Prodigi,  104,  174,  343. 
Profession,  290,  345. 
Profits  k  prendre,  216,  218. 
Promise  to  marry,  285. 
Promisor  and  promisee,  259. 
Promissory  note,  272,  302,  305. 
Promulgation  of  a  law,  40  n. 
Proof,  351. 
Property,  202. 

—  intangible,  203,  211. 

—  literary  and  artistic,  204, 
211. 

—  moveable  and  immoveable, 
284. 

—  offences  against,  374. 

—  tangible,  203. 
Proprietary  rights,  163,  183,  387. 
Protection  of  subjects,   right  of, 

386,  388,  389. 
Protest,  117  n. 

Proudfoot,  Mr.  Justice,  317  n. 
Proximity,  155,  212. 
Prussian  Landrecht,  412  n. 
Public  law,  122,  138,  142,  355. 

—  application  of,  412. 

—  characteristics  of,  355. 

—  classification  of,  358. 

—  relation  of,  to  private  law, 
320,  356,  357,  367,  376,  381, 
382. 

Publication  of  laws,  40  n. 
Public  opinion,  78,  82,  381. 
Public  policy,  149,  268,  296. 
Public     prosecutor,     320,      376, 

376  n. 
Puchta,  G.  F.,  43  n,  60, 89  n,  112  n, 

119  n,  153  n,  196  n. 
Puffendorf,  14  n,  81. 
Punishment,  theory  of,  369. 
■ —  special  part  of  the,  371. 
Pimishments,  the  list  of,  371. 
Purchase,  212. 
Piittlingen,  V.  von,  407. 


Quaestiones  perpetuae,  368. 
Qualification,  152. 
Quasi-contracts,  238  n. 
Quasi-corporations,  323. 
Quasi  ex  contractu,  obligationes, 

235,  238. 
Quasi  ex  delicto,  235. 
Quasi-possession,  199. 
Quasi-private   personality  of   the 

State,  358. 
Quasi-rights    and    duties  of    the 

State,  122,  127,  128,  376. 
Qimsi-territorial  jurisdiction,  382. 
Quasi-usufruct,  219. 
Qulritarian  ownership,  213. 


R. 

Race,  in  the  application  of  law, 

400,  401,  402,  418. 
Rachimburgi,  57. 
Racing,  297. 
Railway-carriers,  289,  290. 

—  Companies,  290,  337. 
Raleigh,  Sir  W.,  23. 
Rashness,  107  n. 
Ratification,  266,  299,  302,  325. 
Real  contract,  279. 

—  property,  100,  156,  281. 

—  representative,  act  to  establish 
a,  156  n. 

—  servitudes,  214,  215,  216. 

—  statute,  140,  405. 
Reallast,  221. 
Reason,  54  n. 
Reasonable  custom,  55. 
Recaptor,  243. 
Recht,  14,  80,  318. 

—  objectives     and      subjectives, 
80. 

Rechtsgeschaft,  112,  113,  248. 
Recognition,  212,  394. 
Recognizance,  126  n. 
Record,  contract  of,  251  n. 
Redhibitory  action,  282. 
Regelsberger,  F.,  116  n. 
Regime    de      la     communaut^, 
342. 

—  dotal,  343. 


438 


INDEX. 


Registration  of  births,  364. 

—  of  contracts,  280. 

—  of  encumbrances,  227 

—  of  title,  10  n,  210. 

—  of  trade-marks,  211. 
Regress,  295,  300. 
Relative  duties,  125. 
Release,  306,  310,  324. 
Religion,  entering   into,  92,   212, 

345. 

—  as  a  source  of  law,  61,  401. 

—  offences  against,  374. 
Remainderman,  219,  220. 
Remedial  rights,    141,    160,   312, 

314,  316,  318,  324,  390. 

—  extinction  of,  324. 

—  origin  of,  312,  318. 

—  suspension  of,  326. 

—  transfer  of,  324. 
Remoteness,  146,  351. 
Renault,  L.,  317  n. 
Rent,  284. 
Renimciation,  293. 
Renvoi,  402  n. 
Reported  cases,  63-67. 
Representation,  117,  292. 
Reprisals,  392,  393. 
Reputation,  right  to,  163, 176, 322, 

386. 

—  offences  against,  373. 

Res,  corporales  and  incorpo- 
rales,  97,  98,  99,  131,  202  n, 
206. 

Res,  fungibiles  and  non  fungibiles, 
101,  283. 

—  iudicata,  325. 

—  mancipi,  101  n,  281. 

—  mobiles  and  immobiles,  100. 

—  nullius,  188,  202,  207. 
Rescission,  308. 
Reservation,  115  n. 
Resolutory  condition,  119. 
Respondentia,  298. 
Responsibility,  149,  323,  369. 
Restitutio      in     integnmi,     308, 

316. 
Restitution,  85,  316. 

—  of  conjugal  rights,  240. 
Restraint  of  trade,  296. 
Retorsion,  391. 
Retrospective  application  of  law, 

400. 


Revenge,  312,  315,  321  n. 
Revenue,  364. 

Reversion,  injury  to,  220,  323. 
Reversioner,  323. 
Revocation,  260,  261,  293. 
Right,  a,  what  is,  78,  81. 

—  ambiguity  of  the  term,  80. 

—  analysis  of,  87,  129. 

—  definitions  of,  79,  81. 

— ^dynamical  elements  of,  89,  143, 
150. 

—  extent  of,  153. 

—  forfeiture  of,  149. 

—  infringement  of,  144,  318,  319, 
320,  322. 

—  object  of,  77,88,  131. 

—  orbit  of,  144,  198,  318,  367. 

—  statical  elements  of,  89,  143. 

—  waiver  of,  149,  163,  164.  321, 
325. 

Right  of  action,  a,  316. 
Rights,  as  a  basis  for  the  classifica- 
tion of  law,  84,  142,  161. 

—  primary   distinction    between, 
123. 

—  classification  of,  120,  142,  163, 
237. 

—abnormal,132, 142,160, 328, 357. 

—  absolute,  140,  162. 

—  antecedent,  161,  163,  234,  318, 
357,  383,  385,  389. 

—  of  common,  217. 

—  contractual,  175,  247,  248,  278. 

—  ex  contractu,  238,  248,  323. 

—  derivative,  162. 

—  of  determinate  incidence,  141. 

—  of  disposition,  201. 

—  domestic,  238. 

—  dominical,  174. 

—  of  enjoyment,  200. 

—  family,  163,  168,  238,  322,  374. 

—  fiduciary,  238,  241,  323. 

—  to  immunity  from  fraud,  229. 

—  imperfect,  392. 

—  of  indeterminate  incidence,  141 

—  international,  385,  386. 

—  legal,  77,  79,  82,  83. 

—  ex  lege,  238. 

—  marital,  164,  239. 

—  meritorious,  238,  243,  323. 

—  moral.  78,  83. 

—  in  motion,  143,  151,  363. 


INDEX. 


439 


Rights,  natural,  162,  201,  215. 

—  of  neutrals,  394. 

—  normal,  132,  142,  160,  328, 
357. 

—  official,  238,  245. 

—  ordinary,  163,  179. 

—  parental,  172,  240. 

—  perfect,  392. 

—  to  personal  safety,  163,  322, 
386. 

—  in  personam,  139, 161, 234,  236, 
238, 248, 249,  303, 306, 318, 322, 
357,  383,  386,  389 

ex  lege,  238. 

transfer  of,  303,  304. 

extinction  of,  306,  324. 

—  to  possession,  200. 

—  primary,  141. 

—  to  privacy,  183  n. 

—  private,  122,  320. 

—  proprietary,  183. 

—  public,  122,  320. 

—  relative,  141,  142. 

—  in  re  aliena,  214,  222,  322, 
387. 

—  in  rem,  139,  161,  162,  163,  248, 
303,  318,  322,  386. 

—  remedial,  142,  160,  161,  235, 
312, 314, 316, 318, 324, 357, 383, 
385.  386,  390. 

—  to  reputation,  176,  386. 

—  at  rest,  143,  144,  363. 

—  of  sale,  222. 

—  sanctioned  and  sanctioning, 
141. 

—  secondary  ,141. 

—  of  self-defence,  316,  370,  391. 

—  to  services,  235  n. 

—  stricti  iuris,  391. 

—  tutelary,  173. 
Riots,  372. 
Rita,  16  n. 
Rodenburg,  C,  405. 
Roguin,  E.,  6  n,  283  n. 
Roman-Dutch  Law,    145   n,   275. 

281  n. 
Rorer,  David,  410  n. 
Rousseau,  47  n. 
Rover,  116  n. 
Ruler  of  action,  20. 

—  postulates  of,  24. 
Rusticorum  iudicium,  148,  148  n. 


s. 


Sachsenspiegel,  340  n,  352  n. 

Safety,  right  to,  163,  322,  386. 

St.  Germain,  54. 

Sale,  contract  of,  232,  248  n,  281, 
289,  301. 

Sale  of  Goods  Act,  210  n,  273  n, 
301  n. 

Saleilles,  113  n. 

Sale-man,  158  n. 

SaUc  law,  158  n,  193,  271  n. 

Salisbury,  John  of,  70  n. 

Salvage,  243,  245  n,  298. 

Sanction,  22,  29,  85. 

Sanitary  precautions,  365. 

Satio,  209. 

Savigny,  F.  C.  von,  21, 43, 44, 44  n, 
57  n,  60,  75,  89  n,  91  n,  97  n, 
100  n,  102  n,  114  n,  117  n,  131  n, 
132  n,  138  n,  151  n,  162  n,  187, 
188  n,  190  n,  191, 192, 197, 197  n, 
198  n,  209  n,  235,  242  n,  249, 
252,  271  n,  305  n,  406. 

Scandalum  magnatimi,  178  n, 
373  n. 

Schaffner,  W.,  407. 

SchaU,  116  n. 

Scheinemann,  406. 

Schirrmeister,  G.,  162  n. 

Schlossmann,  117  n. 

Schmid,  R.,  406. 

Schoffen,  57. 

Schtar,  the,  272  n. 

Schuldvertrag,  249  n. 

Sciences,  the,  separation  of, 
17. 

—  limits  to  province  of  each  of, 
25. 

—  practical,  17,  19,  25. 

—  practical,  division  of,  into  Ethic 
and  Nomology,  25. 

—  theoretical,  18. 
Scienter,  166  n. 
Scientific  discussion,  67. 

Scots  law,  57  n,  123  n,  145  n,  167  n, 
170,  173  n,  201  n,  210  n,  219, 
242  n,  243  n. 

Scriptura,  209. 

Seal,  271  n. 

Seal,  contract  under,  see  Deed. 

Secondary  rights,  141. 


440 


INDEX. 


Security.  222,  223,  225,  228,  229, 
278,  377. 

—  discharge  of,  229. 

—  transfer  of,  229. 
Sedes  Apostolica,  360  n. 
Seduction,  173,  175  n,  322. 
Seger,  406. 

Seisin,  194. 

Selbstcontrahiren,  das,  259  n. 
Selden,  J.,  71. 
Self-defence,  165,  370. 
Self-government,  366. 
Self-help,  239,  312,  313,  316,  391. 
Self-preservation,    right   of,   370, 
386. 

—  theory  of,  415. 
Self-sale,  164. 
Semi-sovereignty,  47,  385. 
Separate  estate,  343. 
Sequestratio,  288. 
Servants.  188,  291. 

—  liability  for  acts  of,  149,  266, 
323. 

Services,  contract  for,  279,  280, 
287,  290. 

—  for  life,  291  n. 

—  negative.  280,  296. 

—  professional,  291,  345. 

—  right  to,  175. 
Servient  tenement,  215. 
Servitude.  214,  215,  216,  377,  387. 

—  acquisition  and  loss  of,  218, 221. 

—  characteristics  of,  216. 

—  cla-sses  of,  216. 

—  definition  of,  217. 
Servitude,  personal,  215,  216,  218. 

—  predial,  215. 

—  real,  216,  217,218. 

—  rural  and  urban,  216,  217. 
Servius,  229  n. 

Set-ofif,  309,  325. 

Sex.  93,  340,  361. 

Shares  in  companies.  305  n,  334. 

Ships.  210,  246,  290,  298,  323  n. 

—  jurisdiction  over,  388,  394,  395, 
413. 

Simple  contract.  271 . 
Singular  succession,  154. 
Sitting  dharna,  313. 
Slander,  176-179. 

—  of  title,  180,  203. 

Slave,  90,  174,  299,  322,  344. 


Societas.  see  Partnership. 

—  leonina,  294. 

Societe  anonyme,  295,  335. 

—  en  commandite.  295,  335. 

—  en  nom  coUectif ,  295. 

Sohm,  Prof.,  118  n,  119  n,  124  n, 

214  n,  238  n,  271  n. 
Solariiun.  214  n. 
Soldiers,  106,  345. 
Solutio.  236,  306  n. 
Sophocles,  31. 
Soxirces  of  law,  53,  54. 

—  of  rights,  151. 

Sovereign  political  authority,  40, 
43,  51. 

—  its  component  parts,  360. 
Sovereignty,  47,  359. 

—  external  48,  361,  384. 

—  internal,  48,  360. 

—  difficulties  of  theory  of,  50. 
Special  property.  195. 
Specialty  contract.  271,  311. 
Specific  performance.  316. 
Specificatio,  207. 

Spence.  69  n. 

Spencer,  Herbert,  77  n,  365  n. 

Sponsalia,  285. 

Staatsgewalt,  359. 

Staatsrecht.  358  n. 

Stadtrecht  bricht  Landrecht,  400. 

State,  a,  44,  357-367. 

—  definitions  of,  45. 

—  may  have  rights  and  duties, 
123,"  126,  319,  320,  355,  376, 
385. 

—  its  organs  for  law-making, 
74. 

State,  as  arbiter,  128. 

—  identity  of  a,  385. 

—  in  international  law,  384. 

—  intervention  of,  85. 

—  as  a  juristic  person,  376,  377. 

—  objects  of,  77,  363. 

—  offences  against,  367,  371-374. 

—  origin  of,  46,  385. 

—  as  party,  122,  376,  377. 

—  property  of,  363,  374,  377, 
387. 

—  as  source  of  law,  40,  54,  77. 

—  termination  of,  385. 
States,  classification  of,  48,  384. 

—  mi-sou verains,  48,  384, 


INDEX. 


441 


Status,  90,  129, 132,  136, 340,  357, 

384. 

—  international,  384,  386. 
Status  civiles,  91,  137  n. 

—  naturales,  91,  137  n. 
Statuta,     tlieory     of     the,     405, 

408. 
Stephen,  Sir  J.  F.,  64  n,  103  n, 

205  n,  369,  370  n,  373  n. 
Stewart.  Dugald,  28  n. 
Stipulatio,  270,  271,  310,  344. 
Stock-jobbing,  297 
Stoics,  the,  32. 
Stoppage  in  transitu,  282. 
Story,  J.,  113  n,  114  n,  406. 
Story,  W..  272  n. 
Struve.  404  n,  406. 
Suarez,  F.,  382. 
Substantive  law,  86,  142,  161,  354, 

357,  369,  377,  383. 

—  international  law,  382,  390. 

—  private  law,  161. 
Substituted  right,  310. 
Substitutes  for  performance,  306, 

307. 
Subtraction,  323. 
Succession,  154,  212,  387. 

—  intestate,  155,  212,  377. 

—  singular,  154. 

—  testamentary,  156,  212. 

—  universal,  154,  212,  303. 
Suicide,  373. 

Summa  potestas,  47,  359. 
Siunniary  conviction,  375. 
Summons,  350,  375. 
Superficies,  214. 
Supreme  Court  of  U.  S.,  66,  73. 
Suretyship,  see  Guarantee. 
Survivorship,  295,  351  n. 
Suspension  of  remedy,  326,  346, 

371. 
Suspensive  condition,  119. 
Suzerainty,  48,  384. 
Syngraphae,  272. 


Tableaux  vivants,  204  n. 
Tackmg,  229. 

Tangible  property,  203,  206. 
Taylor,  Jeremv,  33. 


Temerity,  107  n. 

Tender,  308. 

Tenement,  dominant  and  servient, 

118. 
Terce,  219. 
Terminology,  suggested  new,  25, 

88,  130,  132,  141,  144,  238,  328, 

358, 397,  399,  400, 402, 403, 413, 

415,  416. 
Territorial  theory  of  jtirisdiction, 

413. 
Territory,  387,  388,  401. 
Testament,  156,  212. 
Testamentary  succession,  155, 156, 

212. 
Teutonic  law,  193,  271,  281,  315, 

352  n,  356  n,  368. 
Texas  doctrine,  the,  167  n. 
Theophilus,  90,  316  n. 
Thief,  possession  by  a,  189. 
Thing,  a,  95. 

—  accessory,  101,  208. 

—  compound,  98,  100. 

—  consumable,  101,  219. 

—  fungible,  101,  283. 

—  identity  of,  97,  98. 

—  intangible,  99,  203,  204,  205. 

—  intellectual,  95,  99,  204. 

—  material,  95,  188. 

—  moveable,  immoveable,  100. 

—  principal,  101. 

—  simple,  98. 

—  tangible,  203. 

—  definition  of,  95,  96,  97. 

—  divisibility  and  componibility 
of,  100. 

Things,  classification  of,  95,  99, 
203. 

—  law  of,  129-319. 
Thomas,  St.,  see  Aquinas. 
Thomasius,    30,    40,    42,    79    n, 

81.  - 
Tierce  opposition,  352  n. 
Time,  102,  260,  326,  370. 

—  in  the  application  of  law,  400, 
418. 

Tindal,  L.  C.  J.,  108. 
Title,  151,  206. 
Titulus,  142. 
Tort,  319. 

—  and  crime,  319,  367,  368,  369, 
370,  371. 


442 


INDEX. 


Torts  founded  on  contract,  247. 

—  of  a  corporation,  336  n. 
Trade-guilds,  335  n. 
Trade-mark,   204,  205,  211,  232, 

322. 
Trade-name,  right  to,  204  n. 
Trade  union,  324 
Traditio,  209. 
Traiectitia  pecunia,  298. 
Traill,  H.  D.,  365  n. 
Transactio,  308. 
Transfer  of  rights  in  personam,  1 53 . 

303,  324. 
Transfer  of  rights  in  rem,  151, 168, 

169, 171,  201,  208,  211,  212,  229. 
Transfer  of  rights  by  act  of  law  and 

of  party,  153,  303. 
Translative  fact,  153. 
Trauung,  285. 
Treason,  372. 
Treasure  trove,  187,  207. 
Treaties,  388. 

Trent,  Council  of,  170,  170  n,  286. 
Trespass,  198,  322. 
Tria  capita,  90,  91. 
Trial,  351,  375,  392. 

—  by  battle,  348  n. 

'  Tribunal  des  conflits,  367. 
Trust,  breach  of,  319,  323. 
Trusts,  70,  241. 

—  legislation    against    in    U.    S., 
180  n. 

Tutelary  rights,  173,  241. 

Tutor,  173,  341. 

Twelve  Tables,  the,  176  n,  315 


U. 

Ulpian,  3,  22  n,  33,  34,  124,  199  n. 
Ultra  vires,  doctrine  of,  339. 
Unborn  child,  92. 
Unconstitutional,  meaning  of  the 

term,  359. 
Underwriters,  298. 
Undue  influence,  103,  264. 
Union  of  States,  48. 
United  Kingdom,  48. 
United  States,  constitution  of,  73, 

251  n. 
Universal    succession,    154,    155, 

212,  303. 


Universitates  bonorum,  94,  205, 
339. 

—  personarum,  94,  339. 
Unwritten  law,  74. 
Urrechte,  162. 

Usage,  54. 

Use,  contract  for,  283. 

Uses,  241. 

—  Statute  of,  241. 
Usucapio,  208. 
Usufruct,  219,  220. 
Usury,  283. 
Usus,  219. 

Usus  fori,  62. 

V. 

Vassal,  241,  323. 
Vattel,  E.  de,  387,  416. 
Vedas,  the,  19. 
Verbrechen,  370. 
Vermogen,  154,  206. 
Vemehmungstheorie,  261. 
Verwaltimgsrecht,  363. 
Vested  rights,  theory  of,  411  n. 
Vis,  103,  190,  264,  314  n. 
Vis  maior,  289  n. 
Vitia,  282. 

Vivum  vadium,  224  n 
Voet,  John,  405. 

—  Paul,  405. 

Void  and  voidable  acts,  113. 

—  contracts,  263.  264,  272. 
Volenti  non  fit  initu-ia,  149,  164, 

321. 
Volkerrecht,  419  n. 
Volimtary  agreements,  281. 

—  alienation,  280,  281. 

—  facts,  153. 

W. 

Wachter,  C.  G.,  405,  41  In. 

Wadset,  223. 

Wager,  296. 

Wagering  contract,  see  Aleatory. 

Waiver  of  a  right,  149,  163,  164, 

■321,  325,  395. 
War,  392. 

—  effect  of,  on  property  and  obli- 
gations, 307, 346,  39i,  392,  393, 
394,  395. 


INDEX. 


443 


War.  tho  laws  of,  392,  393, 
Ward  of  Chancery,  173. 
Wardship,  173. 
Warehouseman,  288. 
Warfare,  conduct  of,  392. 
Warranty,  232,  282,  289,  299,  301. 
Waste,  323. 
Wedding,  285. 
Weinkauf,  271. 
Westbury,  Lord,  15  n,  204. 
Westlake,  Professor  J.,  132,  401  li, 

408,  419  n. 
Wette,  271. 

Wharton,  F.,  109  n.  110  n,  406. 
Whole,    ideal    and   physical,   98, 

99. 
Widow,  adultery  with,  374  n. 
Wife,  liability  for  acts  of,  266. 

—  how  suable,  342  n,  354. 
Wigmore,  J.  H.,  222  n. 
Will,  a,  155,  212. 

WiU.  the,  24,  25,  26, 102, 103,  248, 
321. 

—  exertion  of,  102,  103,  113. 

—  expression  of,    111,   114,  249, 
253,  254,  255,  265. 

form  of,  115,265. 


Wills,  union  of,  253,  254,  257. 
Windscheid,  B.,  9  n,  97  n,  98  n, 

102n,  112n,  115n,  117n,261  n. 
Witness,  incapacity  for  being,  346, 

352. 
Witthum,  285. 
Wolff,  45,  121  n. 

Women,  104,  106,  174,  340,  361. 
Woolsey,  T.  D.,  172  n. 
Work  on  materials,  288. 
Workmen's    Compensation     Act, 

the,  150. 
Wounding,  165. 
Written  contract,  272,   273,  276, 

294. 

—  law,  74. 

Wrong,  317,  319,  322,  323. 
Wrongs,  classification  of,  320,  321. 

—  list  of,  322,  323. 

—  independent  of  contract,  319 
323. 


Z. 


Zitelmann,  E.,  103  n,  115  n. 
Zouche,  R.,  81,  126,  380  n,  392  n. 
Zustandsobligationen,  238  n. 


TBB  BND. 


JpTi'nfflJ  bg  ^anf)attau  Prrss, 
Kfto  gorfe,  a.  5.  a. 


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